Argued and Submitted November 8, 2012, San Francisco, California
[Copyrighted Material Omitted]
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A090-213-873.
The panel denied Jesus Padilla-Martinez's petition for review of three decisions by the Board of Immigration Appeals, and its conclusion that his prior state law drug offense qualified as an aggravated felony.
The decisions in question involved application of the modified categorical approach to determine whether Padilla-Martinez's conviction of sale of a controlled substance under California Health and Safety Code § 11378 is an aggravated felony. The panel held that it had jurisdiction to review the BIA's interim decisions remanding issues to the Immigration Judge, because the final deportation order was contingent upon them. The panel also held that the BIA's decisions did not violate Padilla-Martinez's substantive or procedural due process rights, because: (1) the BIA's first sua sponte remand to the IJ was proper; (2) on remand, the IJ properly admitted a facsimile copy of the transcript of the state court felony change of plea proceeding; and (3) the BIA properly considered the government's appeal of the IJ's order granting Padilla-Martinez's motion to terminate proceedings.
Kara Hartzler (argued), Florence Immigrant and Refugee Rights Project, Florence, Arizona, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Richard M. Evans, Assistant Director, Nancy E. Friedman, Senior Litigation Counsel, Christina Bechak Parascandola (argued), Trial Attorney, United States Department of Justice, Washington, D.C., for Respondent.
Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit Judges, and Kevin T. Duffy, District Judge.[*]
GOULD, Circuit Judge.
Jesus Padilla-Martinez seeks review of a series of decisions by the Board of Immigration Appeals (" BIA" ) culminating in the BIA's conclusion that his prior state-law drug offense qualified as an aggravated felony under 8 U.S.C. § § 1101(a)(43)(B), 1227(a)(2)(A)(iii), making him a deportable alien. Padilla-Martinez contends that his dueprocess rights were violated by the immigration proceedings that followed his incarceration for a conviction under California Health and Safety Code § 11378 (possession for sale of a controlled substance). We must decide whether Padilla-Martinez's due-process rights were violated by BIA decisions that (1) allowed the Government multiple opportunities to prove Padilla-Martinez's eligibility for deportation under the modified categorical approach and (2) admitted into evidence an uncertified transcript of the state-court felony change-of-plea proceedings.
Padilla-Martinez is a native and citizen of Mexico. He first entered the United States without inspection, but later became a lawful permanent resident by adjusting his status. In March 2008, Padilla-Martinez was indicted for possession for sale of a controlled substance, methamphetamine, in violation of California Health and Safety Code § 11378. He pleaded pursuant to People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (Cal. 1970) (en banc), which held that a guilty plea to an offense does not necessarily mean that the defendant admits to the facts charged in the indictment. He was convicted by the State of California and served ninety days in prison.
A. First Immigration Judge Decision and Appeal
After his release, the Government initiated deportation proceedings against Padilla-Martinez, viewing him as deportable for the aggravated felony of illicit trafficking in a controlled substance, including a drug trafficking crime, under 8 U.S.C. § § 1101(a)(43)(B), 1227(a)(2)(A)(iii). Padilla-Martinez opposed his removal and moved to terminate proceedings contending that the plea documents submitted by the Government did not establish a conviction involving a controlled substance as defined by federal law. The Government opposed the motion. ...