Rosas-Castaneda v. Holder (9th Cir. 2011)

This case illustrates the finer points between a conviction for a controlled substance violation and a conviction for an aggravated felony.  In most circumstances, the differences are merely academic, because either type of conviction would render a person inadmissible, and therefore, not eligible for immigration benefits.  However, in situations involving cancellation of removal where the petitioner has lawful permanent residence status (has already been admitted to the United States), the differences can mean being removed or being permitted to remain in the country.  In such situations, a person with an aggravated felony conviction is ineligible for cancellation of removal; while on the other hand, a person with a controlled substance violation remains eligible for relief.  This is a result of the quirks in the sections dealing with inadmissibility and removability in the immigration laws.

In the case at hand, the petitioner was a national from Mexico who had been a lawful permanent resident since 1993.  In 2007, he was convicted of attempted transportation for sale of an amount of marijuana weighing more than two pounds in violation of Arizona law.  He was placed in removal proceedings after he served his 30-day sentence.  Anyone with a passing knowledge of the immigration laws pertaining drug convictions would believe that he has no chance, right? While in proceedings, the immigration judge found that he was in fact removable on account of being convicted of a controlled substance violation.  However, the immigration judge found that that record was unclear as to whether his conviction amounted to an aggravated felony.  The conviction documents which the government submitted were ambiguous as to the exact nature and scope of his conviction (it was ambiguous as to whether he was convicted of solicitation or transportation of the marijuana).  This point is critical because he would have been disqualified from applying for cancellation of removal if his conviction was considered an aggravated felony.  A controlled substance violation may also be considered an aggravated felony in many situations, but not always.  In this situation, a solicitation offense would not have been an aggravated felony.

The judge ordered that the respondent submit additional corroborative evidence to establish that his conviction was indeed not for an aggravated felony.  The petitioner declined to supply the corroborative evidence because he argued that an immigration judge may not request additional supporting evidence unless it was to corroborate testimonial evidence.  An immigration judge may not request additional evidence to corroborate documentary evidence.  That is, had the petitioner testified about his drug conviction, the judge may have requested corroborative evidence.  However, since the evidence came to be admitted by way of conviction documents, the judge may not order him to submit additional corroborative evidence of his conviction.  Further, because the record was inconclusive as to whether his conviction was for an aggravated felony, he should be considered to have met his burden of proof in showing that he was not disqualified from applying for cancellation of removal.  The judge denied the respondent’s application for cancellation of removal because he had not established that he had not been convicted of an aggravated felony.

On appeal, the Ninth Circuit agreed with the petitioner.  The court found that the immigration judge was not authorized to request that the petitioner provide corroborative information for documentary evidence which had been admitted.  The immigration judge may only make such a request in circumstances where the petitioner provided inconclusive testimonial evidence.  Secondly, and more importantly to the case, the fact that the conviction documents pertaining to the petitioner’s drug conviction was inconclusive as to the nature and scope of his conviction means that he should have been considered to have met his burden of proof.  He may not be compelled to show that he was not convicted of an aggravated felony if it was not clear from the documentary evidence that he was.

The positive conclusion to this case turned on several obscure and super subtle vagaries of immigration law.  For this reason, it is always necessary to have a case examined by competent immigration counsel who specializes in immigration work.