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Ricci, John E.

, Esquire
Law Ofice of Ricci & Sprouls
445 Washington Street
San Francisco, CA 94111-0000
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesbur Pike. Suite 2000
Fals Church. Vrinia 22041
OHS/ICE Ofice of Chief Counsel SFR
P .0. Box 26449
San Francisco, CA 94126-6449
Name: CONTRERAS-TORRES, FEDERICO A036157819
Date of this notice: 1/20/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Hofman, Sharon
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Federico Contreras-Torres, A036 157 819 (BIA Jan. 20, 2012)
. U.S.,Department of Justice
Executive Ofce fr Imigation Review
Decision of the Board oflmigation Appeals
Falls Church, Virginia 22041
File: A036 157 819 - San Francisco, CA
In re: FEDERCO CONTRRAS-TORS
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: John E. Ricci, Esquire
ON BEHALF OF OHS: Nancy C. Liu
Assistt Chief Counsel
CHARGE:
JAN
JOZOIZ
Notice: Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)
] -
Convicted of controlled substance violation
APPLICATION: Termination of proceedings; reopening; reconsideration
In a decision, dated April 21, 2011, the Immigration Judge terminated these removal proceedings
upon concluding that the Department of Homeland Security ("OHS") had not presented clear and
convincing evidence that the respondent, a native and citizen of Mexico who was admited to the
United States as a lawfl peranent resident in 1976, was subject to removal as an alien who, at any
time afer admission, had been convicted of a violation of a law relating to a contolled substance.
See sections 237(a)(2)(B)(i), 240(c)(3)(A) of the Immigation and Nationalit Act, 8 U.S.C.
1227(a)(2)(B)(i), 1229a(c)(3)(A). In a separate decision, dated May 16, 2011, the Immigration
Judge denied a motion to reconsider and reopen which was fled by the OHS on May 5, 2011. The
OHS has appealed both of those decisions. We will dismiss both of the DHS's appeals.
Upon de novo review, we afrm the Immigration Judge's decisions to terminate these removal
proceedings and deny the DHS's motion. Like the Immigration Judge, we are not satisfed that the
evidence presented by the OHS is sufcient, under the jurisprudence of the United States Court of
Appeals fr the Ninth Circuit, to establish the respondent's removability as the evidence presented
does not sufciently establish the fctual basis fr the respondent's 2007 Califria state conviction.
See Fregozo v. Holder, 576 F.3d 1030, 1040 (9th Cir. 2009); US. v. Vdal, 504 F.3d 1072, 1088
(9th Cir. 2007); Ruiz-Vdal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007); see also Avila v.
Holder, 2011 WL 5032583, No. 07-72965 (9th Cir. Oct. 24, 2011); Garcia-Tellez v. Holder,
2011W4542678, No. 07-72366 (9th Cir. Oct. 3, 2011). Unlike the evidence described in Retuta
v. Holder, 591 F.3d 1181 (9 Cir. 2010), and US. v. Snellenberger, 548 F.3d 699 (9th Cir. 2008),
we do not consider the evidence ofered by the OHS during the course of these removal proceedings
to be sufciently clear and convincing to establish the respondent's removabilit. To the same
extent, the evidence ofered in support of the motion to reconsider and reopen is also insuffcient to
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Cite as: Federico Contreras-Torres, A036 157 819 (BIA Jan. 20, 2012)
l
A03f 157 819
meet the DHS's burden of establishing the respondent's removability. Accordingly, we will not
disturb the Immigration Judge's decisions in this matter. The fllowing orders are entered.
ORER: The Department of Homeland Security's appeal of the Immigation Judge's decision
terminating these removal proceedings, dated April 21, 2011, is dismissed.
FURTER ORDER: The Departent of Homeland Security's appeal of the Immigration
Judge's decision denying the motion to reconsider ad reopen, dated May 16, 2011, is dismissed.
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Cite as: Federico Contreras-Torres, A036 157 819 (BIA Jan. 20, 2012)
In Re
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN FRANCISCO, CALIFORNIA
Federico Contreras-Torres,
Respondent.
)
)
)
)
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)
)
File Number: A036 157 819
In Removal Proceedings

Charge: Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, as amended, as an


alien who any time after admission has been convicted of a violation of (or a
conspiracy or attempt to violate) any Jaw or regulation of a State, the United
States, or a freign country relating to a controHed substance (as defned in
Section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a
single ofense involving possession fr one's own use of 30 grams or less of
man Juana.
Application: Motion to Terminate
On Behalf of Respondent:
Fra P. Sprouls, Esq.
445 Washington Street
San Francisco, CA 94 I I I
On Behalf of OHS/ICE:
Nancy C. Liu, Esq.
Assistant Chief Counsel
I 20 Montgomery Street, 2nd Floor
San Francisco, CA 94 I 04
DECISION OF THE IMMIGRATION JUDGE
I. Background
On April 13, 2009, the Department of Homeland Security ("DHS") fled a Notice to
Appear ("NT A'') regarding Respondent, Federico Contreras, with this Court. Exh. I. In
allegation fur, the DHS alleged that on or about May 18, 2007, in the Superior Court of
Califria in Santa Clara County, Respondent was convicted of the ofense of criminal
possession of a controlled substance, to wit: methamphetamine, in violation of Califria Health
and Safty Code ("CHSC") I 1377(a). Id. The NTA charged Respondent with removability
pursuant to section 237(a)(2)(B)(i) of the Immigation and Nationality Act ("Act" or "INA")
(violating a law or regulation relating to controlled substance). Id At the master calenda
hearing on October 26, 2010, Respondent, contested removabiJity, and indicated his intention to
deny aU the allegations in the NT A and to fle a motion to terminate.
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DHS fled convictions documents in response to Respondent's stated intention to contest
removability. Exhs. 2 and 3. The documents related to Respondent's 2007 conviction fr
possession of a controlled substance, Case No. CC760141 [hereinafer "2007 conviction"],
consist of the fllowing: ( 1) a complaint, fled March 12, 2007, with the case number easily
readable above the caption (Exh. 2 at 1-2); (2) What appears to be the Clerk's Docket, dated
February 26, 2008, dismissing Respondent's conviction and terminating probation pursuant to
CPC 1210.1 (e)(l ), but not refecting any case number (Exh. 2 at 4); and (3) What appears to be
the Clerk's Docket, dated May 28, 2007, dismissing Count 2 in the interests of justice, but not
refecting any case number (Exh. 2 at 6). The documents related to Respondent's 1999
conviction fr being in possession of a controlled substance, Case No. E99 l 0715 [hereinafer
"1999 conviction"], consist of the fllowing: (I) a complaint, fled May 5, 1999 (Exh. 3 at 1-3);
(2) What appears to be the Clerk's Docket, dated September 21, 2000, refecting convictions fr
CHSC 11377(a), CPC 1202l (c) and CPC 12316(b), as well as a sentence of sixteen months
at the CDC (Exh. 3 at 4); and, (3) Abstract of Judgment which includes the proper case number
on page 6 (Exh. 3 at 5-8).
Respondent fled a motion to terminate on January 26, 2011, arguing that under Ruiz
Vdal v. Gonzales, 437 F.3d 1072 (9th Cir. 2007), the conviction documents submitted by the
DHS relating to his 2007 conviction filed to show that Respondent's convictions related to a
fderal controlled substance because there is no evidence that Respondent pleaded to the
allegation in the complaint. Specifcally, Respondent argued that the complaint is a prosecution
driven document that by itself cannot demonstrate that Respondent was convicted of possession
of methamphetamine. Furher, Respondent argued, the fct that the Clerk's Docket refects a
conviction generally under the section of law charged in the Complaint is insufcient to prove
that Respondent pleaded to the charge in the complaint.
DHS fled an opposition to Respondent's motion to terminate on March 23, 2011. OHS
argued that under US. v. Snelenberger, 548 F.3d 699, 701 (9th Cir. 2008) (en bane), the Court
may rely on complaints and minute orders fom the criminal court to sustain a charge of
removability. It argued that the conviction is supported by the complaint that identifes the
controlled substance and the minute orders that verif the exact charges to which Respondent
pied. See Exh. 2 at 1-6. Therefre, DHS argues, Respondent's 2007 conviction sustains the
charge of removability.
Respondent fled a reply to the DHS's opposition on March 24, 2011. He argued that
DHS missed the signifcance of the Ruiz-Vdal decision, which he stated requires production by
DHS of more than a complaint that names the controlled substance. Respondent frther argued
that DHS has filed to show that the underlying substance related to Respondent's 2007
conviction is a controlled substance under the CSA. He apparently was arguing that the
controlled substances regulated by CHSC I 1377(a), as listed in CHSC 11054(e), are broader
than those regulated by the CSA. Because CHSC I 1377(a) is overbroad, then, it is
Respondent's position that the DHS must submit proof that Respondent pleaded to possessing a
substance specifcally regulated by the CSA, and it has not.
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II. Discussion
The burden of proof is on the OHS to prove by clear and convincing evidence that
Respondent is removable under INA 237(a)(2)(B)(i) based on his 2007 conviction. See fA
240(c)(3)(A). In determining whether Respondent's conviction constitutes a violation of a law
relating to a controlled substance, this Court uses the two-step analysis of the Supreme Court in
Taylor v. United States, 495 U.S. 575 ( 1990). Mielewczk v. Holder, 575 F.3d 992, 994 (9th
Cir. 2009). The analysis in Taylor requires the Court to determine whether the state statute of
conviction is "categorically" a controlled substance ofense under the Act. Id. To make this
deterination, the Court asks whether '"the fll range of conduct' criminalized by the state
statute flls within the disqualifing ofense." Id (interal citation omitted).
Respondent was convicted of possession of a controlled substance in violation of CHSC
I 1377(a). See Exh. 2. Convictions under CHSC I 1377(a) do not categorically qualif as
removable ofenses under section 237(a)(2)(B)(i) because "Califria law regulates the
possession and sale of numerous substances that are not similarly regulated by the [fderal
Controlled Substances Act]. " Ruiz-Vdal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir.2007); see
also Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009) (requiring proof that the record of
conviction show not only that the alien's conviction involved a substance that is listed under
Califria law, but also one that is contained in the fderal schedules). Thus, the OHS must
prove by clear and convincing evidence that the substance underlying the respondent's
conviction is one that is contained in the federal schedules of the CSA.
When the statute of conviction is overbroad in the conduct that it proscribes, the Court
turs to the modifed categorical approach. Id. Using this approach, the Court may "look beyond
the statute of conviction to consider 'a narrow, specifed set of documents that are pat of the
record of conviction."' Id at J028-29 (citing Tokatlyv. Ashcrof, 371 F.3d 613, 620 (9th Cir.
2004)). The Court is "generally limited to examining the statutory defnition, charging
document, written plea agreement, transcript of plea colloquy, and any explicit fctual fndings
by the trial judge to which the defndant assented." Id (quoting Shepard v. United Stales, 544
U.S. 13, I 6 (2005)). The Ninth Circuit has held that minute orders and "documents of equal
reliability" may be considered under the modifed categorical approach, and a minute order may
be considered in combination with the charging document. United States v. Snellenberger, 548
F.3d 699, 701-02 (9th Cir. 2008) (en bane).
Section 237(a)(2)(B)(i) of the Act provides that "[a]ny alien who any time afer admission
has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation
of a State, the United States, or a freign countr relating to a controlled substance (as defned in
Section J02 of the [CSA], (21 U.S.C. 802)), other than a single ofense involving possession
fr one's own use of 30 grams or less of mariuana, is deportable." In tum, 21 U.S.C. 802
defnes the term "controlled substance" as a "drug or other substance, or immediate precursor"
included in the schedules attached to the subchapter. See 21 U.S.C. 802(6). The Ninth Circuit
concluded in Ruiz-Vdal v. Gonzales that the plain language of this statute requires that the
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substance underlying an alien's state law conviction be one that is covered by section 102 of the
CSA. See 473 F.3d 1072, 1076 (9th Cir. 2007). Accordingly, the contro11ed substance at issue
must not only be listed under Califria law, but also contained in the federal schedules of the
CSA. Id at I 077-78.
Turing to the case in question, as CHSC 11377(a) is over-inclusive, the Court must
proceed by applying the modifed categorical approach. Pursuant to Snellenberger, the Court
fnds that the "Felony Complaint" establishes that in case number CC760141, Respondent was
charged with: ( 1) a flony violation of count 1, CHSC 113 77( a), possession of a contro11ed
substance, to wit: methamphetamine; and (2) a misdemeanor violation of count 2, CPC 647(f,
public intoxication, as charged in the complaint on fle. See Exh. 2. The documents that appear
to be Clerk's Dockets refect no case number that this Court can discer to tie the results
contained in those papers to the Felony Complaint. They do refect that a Count 2 was dismissed
in the interests of justice, and that Respondent changed his plea to guilty. However, the
documents do not relate back to the Felony Complaint and simply show a guilty plea in the body
of the document at page 6 with a refrence to "F(OOl ) HSI 1377(a)" and a name similar to
Respondent's (Federico Torres Contreras) at the top. Moreover, the apparent Clerk's Docket
does not contain the crucial language that Respondent pleaded guilty to the crime "as charged in
the Infrmation," see US v. Vdal, 504 F.3d 1072, 1087-89 (91h Cir. 2007) (declining to rely on
the complaint where other evidence of conviction did not contain "the critical phrase 'as charged
in the Infrmation"').
This Court is charged with making its fndings by clear and convincing evidence as
required by IA 240(c). The Court is bothered by the fcts that the documents presented at
Exh. 2 pages 4-6 have no title and only appear to be the Clerk's Dockets fr hearings held on
May 28, 2007 and February 26, 2008, and they do not seem to contain a case number fr the
proceedings that would relate back to the very document upon which DHS relies to prove that the
controJJed substance was methamphetamine, e.g., the complaint. Moreover, they do not contain
the crucial language that Respondent pleaded guilty "as charged in the Complaint."
Therefre, the Court fnds the DHS has not proven by clear and convincing evidence that
Respondent is removable under IA 237(a)(2)(B)(i) based on his 2007 conviction. The Court
will thus grant Respondent's motion to terinate.1
In light of the fregoing the fllowing order shall enter:
1
The Cour notes that Respondent was ganted cancellation of removal in the past regarding his 1999
controlled substance conviction. Furthermore, because he has already sufered one such controlled substance
conviction, he was not eligible fr Federal First Ofender treatment in this matter.
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ORDER
IT IS HEREBY ORDERED THAT Respondent's Motion to Terminate should be
and hereby is GRNTED.
Dated: April 21, 2011
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'
LIU, NACY C.
TRIA ATRY tIT
UITBD STATBS DEPATT OF JSTICE
EXECOIV OFFICE FOR IMMIGRTION RBVIEW
IMMIGRTION COUT
SA FRCISCO, CA
DEPAT OF HOM SBCITY
SA FCISCO, C
DATE: May 16, 2011
FILE A 036-157-819
IN THE MTER OF:
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CONTRERS-TRRES, FEDERICO
ATACHE IS A CPY OF THE DECISION OF THE IMMIGRTION JUGE. THIS
DECISION IS FINA ULESS A APPEAL IS FILE WITH THE BOAD OF
IMIGRTION APPEAS WITHI 30 CA DAYS OF T DATE OF T MILING
OP THIS WRITN DECISION. SEE T ECSE FORS A INSTRUCIONS FOR
PROPELY PREPAIG YOU APPEA. YOU NOTICE OF APPEA A ATACHE
DCS MST BE MILE T:
BOA OP IMIGTION APPES
OFFICE OF THE C
P.O. BOX 8530
FALS CHCH, V 22041
ATAC IS A COPY OF THE DECISION OF THE IMIGRTION JGE AS THE
RESUT OF YOU FAILOB T APPEA AT YOU SCHBDUEO DBPORTION OR REMOV
HEAING. THIS DECISION IS FIN ULESS A MOTION T REOPEN IS FILE
IN ACCORDACE WITH SECTION 242B(c) (3) OF THE IMIGRTION A NATIONAITY
ACT, 8 U.S.C. SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION
240(c) (6), 8 u.s.c. SECTION 1229a(c)(6) IN REMOVA PROCEEDINGS. IF YOU
FILB A MOION T REOPE, YOU MOTION MUST BE FILE WIT THIS COURT:
OTER:
IMIGRTION COUT
120 MONOMRY ST. , SUITE 800
SA FCISCO, C 94104
CC: LW OFFICE OF RICCI & SPROUS
RICCI, JOH E.
445 WASHINGTON STREET
S FCISCO, C 94111
LS
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. ` + e

Y
UD STATS DEPARTNT OF JSTCE
ECUTIVE OFFICE FOR IMGRTON RVIW
IMGRTON COURT
SA FRCISCO, CALIFORA
I the Mater of Federco Conter Tors A Nubr 036 157 819
ORER OF T IMGRATION RDGE
Uion cnsideron of DEPATMNT OF HOMLD SECUTY MOTION TO
RCONSIER A MOTION TO ROPEN, it is HRBY ORERD tat te moton be:
Date:
D GRTD DE becaue:
s


-
0 Te rspondent does not oppose te moton. o

0 A rspone to te moton ha not been fled wt te cu E
*
D Oood cuse has ben estlished fr te motion.

D Te cou agees wit the reaons stated i te opposition to te moti
)
D Te moton is utely per
M
;
Oter:
?F
Q
Deadlines:
w
.
.
0 Te application(s) fr relief mut b fled by
0 Te respondent must comply with DHS biometcs instctons by
F/
Cercte of Sece:
Tis docuent w seed by: [ ] Mail [ ] Peron Serice
To: [ ] Aien [ ] Alien co Cstodial Ofcer [ ] Alien's At/ep [ ]
DHS
Dat: By: Cu Stf

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