Medina-Rodriguez v. Barr

979 F.3d 738

Noe MEDINA-RODRIGUEZ, aka Eloy Medina-Rodriguez, aka Noe Rodrigues-Medina, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 19-72681

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2020 Pasadena, California

Filed October 30, 2020

Roxana V. Muro (argued), Los Angeles, California, for Petitioner.

Mona Maria Yousif (argued), Attorney; Brianne Whelan Cohen, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX8-597

Before: MILAN D. SMITH, JR. and JOHN B. OWENS, Circuit Judges, and KATHLEEN CARDONE,^* District Judge.

M. SMITH, Circuit Judge:

Noe Medina-Rodriguez (Medina-Rodriguez) petitions for review of the decision of the Board of Immigration Appeals (BIA). The BIA affirmed the ruling of the immigration judge (IJ) that Medina-Rodriguez was removable for having committed an aggravated felony by violating California Health & Safety Code § 11359. In doing so, the BIA rejected Medina-Rodriguez's argument that, in deciding removability under the categorical approach, the IJ should compare the state definition of marijuana to the federal definition at the time of removal, rather than at the time of conviction. The BIA and IJ determined that Medina-Rodriguez was not eligible for relief pursuant to the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).

We have not yet addressed the issue of whether to compare the relevant narcotics definitions at the time of conviction or at the time of removal. We now join the Second, Third, and Eleventh Circuits in deciding that, when conducting a categorical analysis for removability based upon a state criminal conviction, it is proper to compare drug schedules at the time of the petitioner's underlying criminal offense, not at the time of the petitioner's removal. We additionally affirm the BIA's ruling as to Medina-Rodriguez's CAT claim. Therefore, we deny the petition for review.

I. Background

Medina-Rodriguez was born in Mexico, and is a Mexican citizen. He first entered the United States when he was six months old, and became a lawful permanent resident in 1987. On April 12, 2011, Medina-Rodriguez was convicted of violating California Health & Safety Code § 11359. At the time of Medina-Rodriguez's conviction, § 11359 provided that "[e]very person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison." Cal. Health & Safety Code § 11359 (in effect prior to October 1, 2011). The maximum term of imprisonment for a § 11359 violation was more than one year. Cal. Penal Code § 18 (in effect prior to October 1, 2011).¹ A § 11359 violation was a felony under California law. See Cal. Health & Safety Code § 11362 (in effect prior to October 1, 2011); People v. Shafrir , 183 Cal.App.4th 1238, 107 Cal. Rptr. 3d 721, 724 (2010). The state court ultimately sentenced Medina-Rodriguez to 180 days’ imprisonment.

In 2018, the Department of Homeland Security (DHS) served Medina-Rodriguez with a Notice to Appear, charging him with being subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."). DHS charged Medina-Rodriguez with having committed an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(B) ("The term ‘aggravated felony’ means ... illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)."). DHS alleged that Medina-Rodriguez's § 11359 conviction was an aggravated felony for the purposes of §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(B).²

Medina-Rodriguez moved to terminate the proceedings, arguing that a conviction pursuant to § 11359 was not a categorical match to the generic federal narcotics offense, 21 U.S.C. § 841(a), because: (1) § 11359 allegedly criminalized a broader range of conduct than its federal generic counterpart; and (2) the California definition of marijuana differs from the current federal definition. The IJ found Medina-Rodriguez removable as charged.

Medina-Rodriguez next applied for asylum, withholding of removal pursuant to the Immigration and Nationality Act (INA), or relief pursuant to the CAT. In a hearing before the IJ, Medina-Rodriguez described injuries to his back, including a hernia, pain in his sciatic nerve, and a bulging disc. He noted that he has been treated for these injuries while in immigration detention and that he uses a wheelchair since he cannot walk more than fifty feet before experiencing pain. Because of these injuries, Medina-Rodriguez expressed a fear that he could be tortured if returned Mexico and placed in a facility for disabled individuals. Medina-Rodriguez submitted several reports to the IJ, including a Department of State report showing that individuals at mental health facilities in Mexico are abused. He also submitted articles discussing discrimination against disabled individuals in Mexico.

Medina-Rodriguez explained that he has about twenty tattoos on his body, including tattoos of a marijuana leaf and of Santa Muerte, to whom he prays. Medina-Rodriguez accompanied his application with articles noting that members of drug cartels also pray to Santa Muerte. Some articles indicated that Santa Muerte has a significant following among drug cartel members and other criminals. Medina-Rodriguez expressed a fear that he would be kidnapped or recruited into a gang because of his tattoos and ability to speak English. He also told the IJ that the last time he was in Mexico, he was robbed, and that the local police did nothing after he reported the robbery.

The IJ ultimately reaffirmed its earlier decision with respect to removability, deciding that Medina-Rodriguez was not eligible for asylum or withholding of removal. With respect to removability, the IJ adhered to our decision in Roman-Suaste v. Holder , 766 F.3d 1035 (9th Cir. 2014), in which we held that § 11359 categorically qualified as an aggravated felony for purposes of removability pursuant to the INA. The IJ generally found Medina-Rodriguez to be a credible witness. Nonetheless, the IJ concluded that Medina-Rodriguez did not qualify for asylum, withholding of removal under the INA, or relief under the CAT.

The BIA affirmed. The BIA also cited Roman-Suaste as supporting Medina-Rodriguez's removability and rejected Medina-Rodriguez's argument that the categorical analysis requires a comparison using the federal drug schedule at the time of removal. The BIA also affirmed the IJ concerning Medina-Rodriguez's asylum, withholding, and CAT claims.

Medina-Rodriguez timely petitioned our court for review of the BIA's holdings on removability and CAT deferral of removal.³

II. Standard of Review

We have jurisdiction over Medina-Rodriguez's petition for review pursuant to 8 U.S.C. § 1252(a). "We review de novo the BIA's determinations on questions of law and mixed questions of law and fact." Conde Quevedo v. Barr , 947 F.3d 1238, 1241 (9th Cir. 2020). This de novo review extends to the question of "whether a state statutory crime qualifies as an aggravated felony." Jauregui-Cardenas v. Barr , 946 F.3d 1116, 1118 (9th Cir. 2020). "We review for substantial evidence the BIA's factual findings." Conde Quevedo , 947 F.3d at 1241. The Supreme Court recently confirmed that the BIA's factual findings on CAT claims are also subject to the substantial evidence standard. Nasrallah v. Barr , 590 U.S. ––––, 140 S. Ct. 1683, 1692, 207 L.Ed.2d 111 (2020). "Substantial evidence review means that we may only reverse the agency's determination where the evidence compels a contrary conclusion from that adopted by the BIA." Parada v. Sessions , 902 F.3d 901, 908–09 (9th Cir. 2018) (internal quotation marks and citation omitted); see also Nasrallah , 140 S. Ct. at 1692 ("The agency's ‘findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " (quoting 8 U.S.C. § 1252(b)(4)(B) )).

III. Categorical Approach

Courts employ the categorical approach to determine whether a state criminal conviction is an aggravated felony for the purposes of the INA, see Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), or Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), see Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

When applying the categorical approach, a court "ask[s] whether the [state] statute of conviction is a categorical match to the generic [federal] predicate offense; that is, if the statute of conviction criminalizes only as much (or less) conduct than the generic offense." Medina-Lara v. Holder , 771 F.3d 1106, 1112 (9th Cir. 2014). "[T]he offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison." Moncrieffe , 569 U.S. at 190, 133 S.Ct. 1678. "[O]nly if a conviction of the state offense necessarily involved ... facts equating to [the] generic [federal offense]" is there a categorical match. Id. (internal quotation marks and citation omitted).

"Whether the noncitizen's actual conduct involved such facts is quite irrelevant." Id. (internal quotation marks and citation omitted). A court "must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized." Id. at 190–91, 133 S.Ct. 1678 (internal quotation marks and citation omitted). If an individual proves that there is "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic [federal] definition of a crime," then the state statute is not a categorical match....