MAYA AKA AKA AKA v. SESSIONS III (2018)

MEMORANDUM **

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). Vences Maya v. Lynch, 621 Fed.Appx. 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).¹ 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).

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.

FOOTNOTES

1.   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.