Opinion
No. 16-73285
05-18-2018
MISAEL VENCES MAYA, AKA Misael Maya, AKA Leonel Morales Carmona, AKA Misael Quintero, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A077-287-810 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 14, 2018 Pasadena, California Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Misael Vences Maya, a citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming an immigration judge (IJ) determination that he is removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). We previously granted Vences Maya's petition for review of the same removability determination and remanded for reconsideration in light of our intervening opinion of Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014). 621 F. App'x 378 (9th Cir. 2015). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
California Health and Safety Code § 11377(a) is a divisible statute as to the type of controlled substance possessed. Coronado v. Holder, 759 F.3d 977, 983-85 (9th Cir. 2014); accord United States v. Ocampo-Estrada, 873 F.3d 661, 668 & n.4 (9th Cir. 2017). Therefore, we look to a "limited set of documents to determine which statutory phrase was the basis for" Vences Maya's conviction. United States v. Martinez-Lopez, 864 F.3d 1034, 1043 (9th Cir. 2017) (en banc) (internal quotation mark and citation omitted).
While Coronado may have placed "undue emphasis on the disjunctive-list rationale" approach to divisibility, United States v. Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017) (en banc), Vences Maya does not argue that Martinez-Lopez overruled it. --------
Here, the government must prove the link between the abstract of judgment (which does not identify a particular controlled substance) and the charging document (which specifies that the charge was for possession of methamphetamine) by clear and convincing evidence. Medina-Lara, 771 F.3d at 1113. We find that the government has met its burden. Unlike in Medina-Lara, where there were "three competing explanations" for the record's ambiguity, id. at 1115, there is a single, and persuasive, explanation for the listing of "Count 5a" instead of "Count 5" on the abstract of judgment: the additional letter matches the charge to the corresponding case number. Vences Maya is therefore removable as charged.
PETITION DENIED.