                                                                            FILED
                                  NOT FOR PUBLICATION                        OCT 03 2011

                                                                         MOLLY C. DWYER, CLERK
                           UNITED STATES COURT OF APPEALS                 U .S. C O U R T OF APPE ALS




                                  FOR THE NINTH CIRCUIT



 JESUS GARCIA TELLEZ,                                     No. 07-72366

            Petitioner,                                   Agency No. A78-058-025

  v.
                                                          MEMORANDUM *
 ERIC HOLDER, Attorney General,

            Respondent.




                          On Petition for Review of an Order of the
                              Board of Immigration Appeals
                                   Argued October 6, 2009
                              Submitted September 28, 2011
                                  San Francisco, California

Before:       GOODWIN and PAEZ, Circuit Judges, and LEIGHTON,** District
              Judge.

       Jesus Garcia Tellez, a native and citizen of Mexico, petitions for review of

an order of the Board of Immigration Appeals (BIA). We have jurisdiction under 8




       *
         This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
       **
        The Honorable Ronald B. Leighton, United States District Judge for the
Western District of Washington, sitting by designation.
U.S.C. § 1252, and we grant the petition. We review the BIA’s factual findings for

substantial evidence. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995). We

review de novo the BIA’s legal conclusions, including whether an offense

constitutes an aggravated felony. Id.; Ruiz-Morales v. Ashcroft, 361 F.3d 1219,

1221 (9th Cir. 2004).

      Garcia Tellez exhausted his administrative remedies by challenging the

immigration judge’s conclusion that his state conviction was an aggravated felony.

See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (holding that raising an

issue before the BIA is all that is required to satisfy the exhaustion requirement).

      Garcia Tellez’s conviction under California Health and Safety Code § 11378

is not a categorical aggravated felony because “California law regulates the

possession and sale of many substances that are not regulated by the [Controlled

Substances Act].” Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir.

2010); see, e.g., Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007)

(finding that § 11379, which regulates the same drugs as § 11378, regulates

substances not covered by the Controlled Substances Act).

      The BIA examined Garcia Tellez’s conviction documents and determined,

under the modified categorical approach, that his state conviction constituted an




                                           2
aggravated felony. We review this determination de novo. Ruiz-Morales, 361 F.3d

at 1221-22.

      To identify a conviction as an aggravated felony under the modified

categorical approach when the only documents in the conviction record are a

felony complaint and judgment, “the judgment must contain the critical phrase ‘as

charged in the information.’” Fregozo v. Holder, 576 F.3d 1030, 1040 (9th Cir.

2009) (quoting United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en

banc)). The clerk’s minute order does not indicate whether Garcia Tellez pled

guilty to the offense as charged in the felony complaint. Because his conviction

record is inconclusive, Garcia Tellez has met his burden to prove he is not barred

from relief on the grounds of an aggravated felony conviction. Sandoval-Lua v.

Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007).

      We have jurisdiction to review de novo whether the BIA applied the correct

legal standard in determining whether Garcia Tellez was convicted of a

“particularly serious crime.” Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.

2006), overruled on other grounds by, Estrada-Espoinza v. Mukasey, 546 F.3d

1147, 1160 n. 15 (9th Cir. 2008) (en banc). Because the BIA erred in finding that

Garcia Tellez was convicted of an aggravated felony, it applied the wrong legal

standard when it applied the presumption from Matter of Y-L, 23 I. & N. Dec. 270


                                         3
(2002), that a drug trafficking aggravated felony presumptively constitutes a

particularly serious crime.

       The BIA’s conclusion that Garcia Tellez failed to demonstrate he would

more likely than not be tortured if returned to Mexico is supported by substantial

evidence. Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008) (holding that to

establish a likelihood of torture under the Convention Against Torture, a petitioner

must show that severe pain and suffering was specifically intended, and that

conditions in the Mexican mental health system do not arise from a deliberate

intent to inflict harm).

       We remand this case to the BIA to determine whether Garcia Tellez has been

convicted of a particularly serious crime, and if he has not, whether he is eligible

for asylum or withholding of removal.

       The petition for review is

       GRANTED.




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