                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 12 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SOLOMON BELACHEW MENGESHA,                       No. 08-74316

              Petitioner,                        Agency No. A029-496-524

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



SOLOMON BELACHEW MENGESHA,                       No. 11-70664
AKA Solomon B. Mengesha,
                                                 Agency No. A029-496-524
              Petitioner,

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted May 14, 2014
                             San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: McKEOWN and M. SMITH, Circuit Judges, and ROBART, District
Judge.**

      Solomon Mengesha petitions for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing his appeal of an Immigration Judge’s decision

finding him removable based on his conviction for a controlled substance violation

and denying his applications for asylum, withholding of removal, and cancellation

of removal. Mengesha argues that the BIA was not permitted to rely on facts

alleged in the charging document to conclude that his predicate conviction related

to a federal controlled substance. We deny the petition for review.

      Mengesha was convicted under Arizona state law of possession of a narcotic

drug. “Count 1” of the criminal information charges that Mengesha “knowingly

possessed or used cocaine base, a narcotic drug.” The judgment states that

Mengesha pleaded guilty to the offense of “Count 1: Possession of Narcotic

Drugs.” “[W]here . . . the abstract of judgment or minute order specifies that a

defendant pleaded guilty to a particular count of the criminal complaint or

indictment, we can consider the facts alleged in that count.” Cabantac v. Holder,

736 F.3d 787, 793–94 (9th Cir. 2013) (per curiam). Because the judgment

specifies that Mengesha pleaded guilty to “Count 1,” the BIA did not err in

       **
             The Honorable James L. Robart, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.

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considering the facts alleged in “Count 1” of the information to conclude that the

substance underlying Mengesha’s conviction was cocaine base, a controlled

substance under federal law. Therefore, the BIA did not err in determining that

Mengesha was removable. See 8 U.S.C. § 1227 (a)(2)(B)(i).

      To be eligible for cancellation of removal and asylum, Mengesha bears the

burden of showing that his prior conviction for attempted rape was not an

aggravated felony. Young v. Holder, 697 F.3d 976, 989 (9th Cir. 2012); see 8

U.S.C. § 1229b(a)(3); id. § 1158(b)(2)(A)(ii), (B)(i). A conviction that qualifies as

an aggravated felony precludes cancellation of removal and asylum even if that

conviction was otherwise waived as a removability ground. Becker v. Gonzales,

473 F.3d 1000, 1003–04 (9th Cir. 2007).

      Mengesha does not dispute that at least one subsection of the divisible

Oregon statute under which he was convicted meets the federal generic definition

of rape. See O.R.S. § 163.375(a); 8 U.S.C § 1101(a)(43)(A),(U). Nothing in the

record of conviction shows that Mengesha was not convicted under this subsection.

An inconclusive record, however, is insufficient to satisfy an alien’s burden of

proof. Young, 697 F.3d at 989. Therefore, the BIA did not err in denying

Mengesha’s applications for cancellation of removal and asylum.

      PETITION DENIED.


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4
                                                                            FILED
Mengesha v. Holder, 08-74316+                                                   AUG 12 2014

                                                                         MOLLY C. DWYER, CLERK
M. SMITH, Circuit Judge, dissenting:                                      U.S. COURT OF APPEALS



      I respectfully dissent from the majority’s denial of the petition for review.

Because Mengesha pleaded guilty to the amended charge in the plea agreement,

which did not specify a drug, the BIA erred in finding that his 1998 conviction was

a violation of a law relating to a controlled substance.

      Our case law emphasizes that “[t]he government must prove by clear,

unequivocal, and convincing evidence that the facts alleged as grounds of

[removability] are true,” including the drug underlying the state conviction. Ruiz-

Vidal v. Gonzales, 473 F.3d 1072, 1076 (9th Cir. 2007) (internal quotation

omitted). “[S]peculat[ing] as to the nature of the substance,” is “not enough” for

the government to meet “its burden of proving that the conduct of which the

defendant was convicted constitutes a predicate offense . . . .” Id. at 1079.

      Generally, “where . . . the abstract of judgment or minute order specifies that

a defendant pleaded guilty to a particular count of the criminal complaint or

indictment, we can consider the facts alleged in that count.” Cabantac v. Holder,

736 F.3d 787, 793–94 (9th Cir. 2013) (per curiam). However, we must “consider

the charging documents in conjunction with the plea agreement, the transcript of a

plea proceeding, or the judgment to determine whether the defendant pled guilty to

the elements of the generic crime.” United States v. Valdavinos-Torres, 704 F.3d
679, 687 (9th Cir. 2012) (quoting Ruiz-Vidal, 473 F.3d at 1078).

      The modified categorical approach specifically focuses on the facts to which

the defendant actually pleaded. See Valdavinos-Torres, 704 F.3d at 687. Indeed,

we have emphasized that “[b]y itself, the [i]nformation contain[s] the elements of

the crime the government set[s] out to prove; it [does] not establish the elements to

which [a defendant] actually admit[s] in his guilty plea.” United States v. Velasco-

Medina, 305 F.3d 839, 852 (9th Cir. 2002).

      Here, Mengesha did not plead guilty to the original charge in the

information; rather, he pleaded guilty to the amended charge in the plea agreement.

The plea agreement amended the charging document, replacing the reference to

possession of cocaine with possession of narcotic drugs. The plea agreement

provides: “Plea: The Defendant agrees to plead GUILTY to: COUNT 1:

Possession of narcotic drugs, a class 4 felony . . . .,” without any reference to

cocaine. The plea agreement also states: “This agreement serves to amend the

complaint or information, to charge the offense to which the Defendant pleads,

without the filing of any additional pleading.” (Emphasis added.) And the

judgment reflects the language of count 1 from the plea agreement—it states that

Mengesha is guilty of “the crime of: OFFENSE: Count I: Possession of Narcotic

Drugs,” and does not specify cocaine. Accordingly, we may not refer back to the

                                           2
information for the fact that the underlying substance was cocaine, because the

information was amended by the plea agreement.

      Therefore, the government cannot unequivocally “connect the references” to

cocaine in the information with Mengesha’s conviction, because the plea

agreement amended the information. Ruiz-Vidal, 473 F.3d at 1079. Here, as in

Ruiz-Vidal, the record contains no documents that reveal the facts underlying the

plea (i.e., the specific drug to which Mengesha pleaded), because the plea

agreement amended the information and removed any reference to cocaine. See id.

The record thus unequivocally shows only that Mengesha pleaded guilty to

possession of narcotic drugs.

      Accordingly, the government has not proven by clear, unequivocal, and

convincing evidence that Mengesha pleaded guilty to possession of cocaine. The

BIA thus erred in finding that Mengesha’s 1998 conviction was a violation of a

law relating to a controlled substance, and that he was removable.

       I respectfully dissent.




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