- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 10-10-2014
- Case #: 13-70491
- Judge(s)/Court Below: Circuit Judge Hawkins for the Court; Circuit Judges Noonan and Christen.
- Full Text Opinion
Jose Medina-Lara (“Medina”), a Mexican citizen and lawful permanent resident of the United States since 2002, appealed a final order of the Board of Immigration Appeals (“Board”) initiating removal proceedings to Mexico. In 2005 and 2007, Medina was convicted of an aggravated felony, a conviction relating to controlled substance, and carrying a firearm under California Health and Safety Code (“CPC”) §11351, §11377, and §12022(c) respectively, making him eligible for removal pursuant to the Immigration and Nationality Act (“INA”). On appeal, the Ninth Circuit Court focused on the modified categorical approach of the three-part Taylor-Descamps v. United States analysis because the first element, in that the conviction was not categorical, and the second element, in that the conviction was divisible, were conceded. The panel determined that Medina’s CPC §11351 conviction is not a predicate for removal because the government failed to meet its burden, whereby the abstract of judgment and the charging papers did not establish through “clear and convincing” evidence that Medina pleaded guilty to the conviction of an aggravated felony or possession of a controlled substance, as required by the INA. The panel also held that the Board incorrectly concluded that Medina’s firearm offense was a predicate for removal because at the time of Medina’s conviction the term “firearm” under CPC §12022(c) was defined by former CPC §12001(b), which was overbroad and did not distinguish antique firearms. Additionally, CPC §12001(b) is indivisible, making the categorical approach inapplicable to the conviction. Lastly, the panel precluded the government from relitigating Medina’s CPC §11377 conviction because the government had a full opportunity to address the issue in prior proceedings as a means of removal under the INA but failed to do so. PETITION GRANTED.