                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JOSE LUIS MEDINA-LARA,                   No. 13-70491
                         Petitioner,
                                          Agency No.
                v.                       A079-361-360

ERIC H. HOLDER, JR., Attorney
General,                                 ORDER AND
                        Respondent.       OPINION


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

               Argued and Submitted
        August 25, 2014—Seattle, Washington

                Filed October 10, 2014

    Before: John T. Noonan, Michael Daly Hawkins,
         and Morgan Christen, Circuit Judges.

                       Order;
              Opinion by Judge Hawkins
2                   MEDINA-LARA V. HOLDER

                           SUMMARY*


                           Immigration

    The panel withdrew its opinion filed on September 19,
2014, and filed a new opinion granting Jose Medina-Lara’s
petition for review of the Board of Immigration Appeals’
decision finding him removable for his California state
conviction of an aggravated felony, controlled substance
offense, and firearm offense.

     The panel, after finding that the government conceded
that California Health & Safety Code § 11351 is not a
categorical controlled substance offense, and that Medina
conceded that CHS § 11351’s controlled substance element
is divisible, proceeded to apply the modified categorical
approach. The panel held that because the written, amended
complaint and abstract of judgment did not provide clear and
convincing evidence regarding what Medina pleaded guilty
to, the government failed to carry its burden to establish that
his conviction was an aggravated felony or controlled
substance offense under the Immigration and Nationality Act.

    The panel also held that the BIA erred in finding that the
enhancement to Medina’s CHS § 11351 conviction for
carrying a firearm in violation of California Penal Code
§ 12022(c) constituted a categorical firearm offense. The
panel found that former CPC § 12001(b), which defined
“firearm” at the time of Medina’s conviction, was overbroad
because recent California prosecutions demonstrated a

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 MEDINA-LARA V. HOLDER                      3

realistic probability that the state could obtain a conviction
even if the firearm was an antique. The panel further held
that CPC § 12001(b) is indivisible, and that thus the modified
categorical approach could not be applied.

     The panel also held that although the IJ and BIA did not
address Medina’s second controlled substance conviction
under CHS § 11377, the government was precluded from
relitigating the issue of whether Medina was removable for
that conviction. The panel granted Medina’s petition, vacated
the removal order, and remanded to the agency with the
instruction that it grant his motion to terminate proceedings.


                        COUNSEL

Lori K. Walls, Washington Immigration Defense Group,
Seattle, Washington, and Devin Theriot-Orr (argued), Gibbs
Houston Pauw, Seattle, Washington, for Petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division,
Cindy S. Ferrier, Assistant Director, Brendan P. Hogan
(argued), Attorney, Civil Division, Office of Immigration
Litigation, United States Department of Justice, Washington,
D.C., for Respondent.


                          ORDER

    The Opinion filed September 19, 2014, and appearing at
2014 WL 46544481 (9th Cir. Sept. 19, 2014), is withdrawn.
It may not be cited as precedent by or to this court or any
district court of the Ninth Circuit.
4                MEDINA-LARA V. HOLDER

                        OPINION

HAWKINS, Circuit Judge:

    Jose Medina-Lara (“Medina”), a Mexican citizen and
lawful permanent resident of the United States, seeks review
of a final order of the Board of Immigration Appeals
(“Board”) authorizing his removal to Mexico. The Board
held that Medina is removable because his 2005 California
drug conviction is both an “aggravated felony” and a
“conviction relating to a controlled substance” and because a
sentence enhancement appended to that conviction is a
“firearm offense,” as those terms are defined by the
Immigration & Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(2). Because each of these conclusions is
erroneous, we grant the petition.

    FACTUAL BACKGROUND AND PROCEDURAL
                 HISTORY

    Immigration authorities admitted Medina as a lawful
permanent resident in 2002. In 2005, a California court
convicted Medina of violating California Health & Safety
Code § 11351 and applied an enhancement for carrying a
firearm during that offense in violation of California Penal
Code § 12022(c). In 2007, a California court convicted
Medina of violating California Health & Safety Code
§ 11377. All convictions were entered pursuant to plea
agreements. We refer to these convictions by their statute
number (e.g., the “§ 11351 conviction”). We refer to the
§ 11351 and the § 11377 convictions collectively as “the drug
convictions.”
                    MEDINA-LARA V. HOLDER                               5

    After he completed his sentence for the § 11377
conviction, the Department of Homeland Security (“DHS”)
took Medina into custody and initiated removal proceedings.1
Although the charging documents in the record are somewhat
unclear, it appears that DHS alleged that the drug convictions
render Medina removable because each is both an aggravated
felony and a conviction relating to a controlled substance
under the INA.2 DHS further alleged the § 12022 conviction
renders Medina removable because it is a firearm offense
under the INA.3 Medina denied these allegations and, in the
alternative, applied for cancellation of removal.4

     Proceedings before the agency were protracted. Medina
first appeared before an Immigration Judge (“IJ”) in San
Francisco, California, on November 17, 2009. Medina

  1
    Medina remained in DHS custody from the initiation of proceedings
through oral argument before this court. Shortly after oral argument and
consistent with our prior practice in such cases, we ordered the
government to release Medina. See Ragasa v. Holder, 743 F.3d 688, 688
(9th Cir. 2014) (order).
  2
    Non-citizens convicted of certain controlled substances offenses are
removable under 8 U.S.C. § 1227(a)(2)(B)(I). Non-citizens convicted of
“aggravated felonies” are removable under 8 U.S.C. § 1227(a)(2)(A)(iii),
which incorporates the definitions listed at 8 U.S.C. § 1101(a)(43). Here,
the relevant subparagraph is 8 U.S.C. § 1101(a)(43)(B), which pertains to
drug trafficking crimes. We refer to these terms of art under the INA as
an “aggravated felony” and a “controlled substance offense.”
  3
    Non-citizens convicted of certain offenses relating to firearms are
removable under 8 U.S.C. § 1227(a)(2)(C). We refer to this term of art
under the INA as a “firearm offense.”
  4
     Given our disposition of this petition, we do not discuss further or
consider Medina’s arguments pertaining to his application for cancellation
of removal.
6                       MEDINA-LARA V. HOLDER

requested an initial continuance to obtain counsel and later
requested additional time to pursue a U-visa. For its part,
DHS requested several continuances to supplement the record
with documents pertaining to Medina’s convictions. This
was necessary because the parties and the IJ seemed to agree
early on in the proceedings that the drug convictions were not
categorically predicate offenses under the INA, thus requiring
application of the modified categorical approach as described
in Shepard v. United States, 544 U.S. 13 (2005).

    The first round of IJ proceedings took about six months
and involved at least five separate requests by the IJ to have
the government supply Shepard-compliant documents which
would unambiguously establish the nature of Medina’s
convictions. At an early hearing, DHS represented that it was
seeking additional documents to supplement the record, and
the IJ granted a continuance, in part, to allow the government
to respond to that request.5 When, at a hearing six weeks
later, the government produced no new documents, the IJ got
specific, noting that “there must have been a super[s]eding
charging document at some point and we don’t have that” in
the record. Once again, the IJ requested additional
documentation, and later on in the same hearing, it appears
DHS’s attorney agreed to provide it, saying “[w]e need to get
the super[s]eding indictment.” The IJ granted another
continuance.6 Two weeks later, the government failed to
produce the requested documents and yet again asked for
more time. The IJ granted the government’s request, saying,
“let’s . . . see what the government can come up with by way



    5
        Hearing of December 1, 2009.
    6
        Hearing of January 19, 2010.
                      MEDINA-LARA V. HOLDER                               7

of documents and the more the better.”7 Two weeks after
that, the government did submit “additional documents”;
however, even these appear to have been insufficient, because
the IJ requested further Shepard-compliant documents so that
the court could “get into a position where there’s no
ambiguity whatsoever about [Medina]’s convictions.” The IJ
specifically noted he wanted to avoid “a situation where it
turns out later someone makes an assertion he was convicted
of something and there’s a dispute about it.”8

     Two and a half months later, the parties reconvened. The
IJ, noting that the 2004 complaint contained “a complicated
set of charges,” called the minutes of the state court
proceedings “a jumble” and once again asked the government
to clarify if it had requested a transcript of Medina’s 2005
plea colloquy, saying, “I think [the transcript] ought to be
requested.” Because the government was not sure if it had
requested the documents, the IJ gave the government one
more month to supplement the record. Medina, by now
detained for five months, consented to the continuance even
though he was ready to proceed on that date.9 Finally, at a
June 6, 2010, hearing, the government admitted it was unable
to produce the transcript and instead attempted to submit a
probation report to clarify the nature of Medina’s convictions.
The IJ excluded that report under Shepard.10

 7
      Hearing of February 9, 2010.
 8
      Hearing of February 25, 2010.
 9
      Hearing of May 11, 2010.
 10
    We do not recount the various continuances to fault the IJ for a failure
to handle this matter expeditiously. It is important to note that Medina
joined many of these requests for a continuance because he was seeking
8                    MEDINA-LARA V. HOLDER

    Though the government neither produced the requested
plea colloquy nor any additional unambiguous documents, the
IJ nevertheless ordered Medina’s removal, holding that each
drug conviction is both an aggravated felony and a controlled
substance offense under the INA and that the § 12022
conviction is a firearm offense under the INA. Medina
appealed to the Board. In an order dismissing Medina’s
appeal (the “2010 order”), the Board held that Medina was
removable on all five grounds identified by the IJ; put another
way, the Board reached a conclusion as to all of DHS’s
allegations.

   Medina then sought review in this court. Before we could
hear the case on the merits, the Board sua sponte reopened
Medina’s case to reconsider his application for cancellation
of removal. Divested of jurisdiction, we dismissed the
pending petition for review. Medina-Lara v. Holder, 10-
73377, ECF No. 48 (9th Cir. Feb. 16, 2012) (order).

     The Board remanded the reopened case to the IJ for
reconsideration of Medina’s cancellation application. At this
point, litigation virtually began anew. Following a transfer of
venue to the immigration court in Tacoma, Washington,
where Medina was detained, Medina renewed his efforts to
terminate removal proceedings based on his theory that none
of his convictions suffices as a predicate for removal,
initiated state post-conviction proceedings in an effort to
vacate his California convictions, and restarted his efforts to
obtain a U-visa. DHS opposed these efforts and sought a new
removal order. The Tacoma-based IJ ordered Medina’s
removal. The IJ held that § 11351, though not categorically


certification for a U-visa. We recite the procedural history to illustrate the
ample opportunity DHS had to supplement the record.
                 MEDINA-LARA V. HOLDER                       9

an aggravated felony or a controlled substances offense, is
divisible and that an application of the modified categorical
approach showed that the § 11351 conviction constitutes both
an aggravated felony and a controlled substance offense. The
IJ further held that § 12022 is categorically a firearm offense
under the INA, and thus ordered Medina removed on that
ground as well. The IJ did not address the § 11377
conviction. Medina appealed to the Board, which affirmed,
also without addressing the § 11377 conviction. Medina
again sought review in this court.

   JURISDICTION AND STANDARD OF REVIEW

    Notwithstanding 8 U.S.C. § 1252(a)(2)(D), we have
jurisdiction to determine our jurisdiction and to determine as
a question of law whether the underlying predicate offenses
render Medina removable. 8 U.S.C. § 1252(a)(2)(D); Malilia
v. Holder, 632 F.3d 598, 601–02 (9th Cir. 2011). While we
may consider only those arguments raised in administrative
proceedings, Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004), we deem exhausted any issues addressed by the Board.
Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010).

    Where, as here, the Board incorporates the IJ’s decision
into its own without citing Matter of Burbano, 20 I. & N.
Dec. 872 (BIA 1994), this court will review the IJ’s decision
to the extent incorporated. Ahir v. Mukasey, 527 F.3d 912,
916 (9th Cir. 2008) (citation omitted). Thus, we refer to the
Board and IJ collectively as “the agency.” We review the
agency’s legal conclusions de novo. Malilia, 632 F.3d at 602.
10                  MEDINA-LARA V. HOLDER

                            ANALYSIS

I. The § 11351 Conviction

   We hold that Medina’s § 11351 conviction is neither an
aggravated felony nor controlled substance offense under the
INA.

                  A. Breadth and Divisibility

    To determine whether the § 11351 conviction is a
predicate aggravated felony or controlled substance offense,
we use the framework set out in Taylor v. United States,
495 U.S. 575 (1990), as refined by its progeny, most notably
Descamps v. United States, 133 S. Ct. 2276 (2013).11 The
Taylor-Descamps framework lays out a three-step process for
determining whether a specific conviction is a predicate
offense mandating removal under the INA.12 At the first step,
we ask whether the statute of conviction is a categorical
match to the generic predicate offense; that is, if the statute of


 11
    As we have noted, the agency held that the § 11351 conviction is both
an aggravated felony and a controlled substance offense. Though these
are two distinct holdings, we are able to consider them together because
both turn on the same legal issue, namely, whether the list of California
substances incorporated into § 11351 is overbroad compared to the federal
Controlled Substances Act. See 8 U.S.C. § 1101(a)(43)(B) (aggravated
felony) (defining “controlled substance[s]” as those appearing in the
Schedules authorized by 21 U.S.C. § 802); 8 U.S.C. § 1227(a)(2)(B)(i)
(controlled substance offense) (also referring to 21 U.S.C. § 802).
      12
     The Taylor-Descamps line of cases developing and refining the
categorical and modified categorical approach applies with equal force in
both sentencing and immigration proceedings. E.g., Aguilar-Turcios v.
Holder, 740 F.3d 1294 (9th Cir. 2014); see Rendon v. Holder, – F.3d –, –,
No. 10-72239, 2014 WL 4115930, at *2 n.5 (9th Cir. Aug. 22, 2014).
                       MEDINA-LARA V. HOLDER                               11

conviction criminalizes only as much (or less) conduct than
the generic offense. Taylor, 495 U.S. at 600; Rendon, 2014
WL 4115930, at *2. If so, the inquiry ends, because the
conviction categorically constitutes a predicate offense. If
not, we move on to step two and ask if the statute of
conviction’s comparatively “overbroad” element is
divisible.13 If not, then our inquiry ends, because a conviction
under an indivisible, overbroad statute can never serve as a
predicate offense. See Descamps, 133 S. Ct. at 2286. But if
the overbroad element (or elements) is divisible, we then
continue to the third step, an application of the modified
categorical approach, which we describe in more detail
below.

    Here, because the agency proceeded to step three and
relied upon a modified categorical analysis, we, too, must
consider all three issues: breadth, divisibility, and the
modified categorical approach. The parties’ concessions
make the analysis simple at steps one and two. Our focus is
on the controlled substance element of § 11351.14 The



 13
    We discuss the concept of divisibility in great detail in Rendon, 2014
WL 4115930, at *2–*3. Because, as we discuss below, we are able to
resolve this petition without delving into the fine details of the divisibility
analysis, we have no occasion to apply Rendon’s framework.
  14
       In pertinent part, § 11351 reads:

            [E]very person who possesses for sale or purchases for
            purposes of sale (1) any controlled substance specified
            in subdivision (b), (c), or (e) of Section 11054,
            specified in paragraph (14), (15), or (20) of subdivision
            (d) of Section 11054, or specified in subdivision (b) or
            (c) of Section 11055, or specified in subdivision (h) of
12                 MEDINA-LARA V. HOLDER

government concedes that § 11351 is not a categorical match
to the generic offense, because California’s list of controlled
substances includes one or more substances not controlled by
federal law. See also Cheuk Fung S-Yong v. Holder, 600 F.3d
1028, 1034 (9th Cir. 2010) (“We have previously found that
California law regulates the possession and sale of many
substances that are not regulated by the [federal] CSA.”).
This concession ushers us to step two, where Medina
concedes that our recent decision in Coronado v. Holder,
747 F.3d 662 (9th Cir. 2014), amended by – F.3d –, 2014 WL
3537027 (July 19, 2014), forecloses his previous argument
that § 11351’s controlled substance element is indivisible.
Based on this concession, we assume, without deciding, that
§ 11351’s controlled substance element is divisible; that is,
that the specific controlled substance (e.g., “cocaine”) is an
element of the crime.

            B. Modified Categorical Approach

   We now confront the third step in the Taylor-Descamps
procedure: an application of the modified categorical
approach. Under this approach, it “makes no difference” if
Medina actually possessed or purchased, for sale, cocaine.
Rather, what matters is whether Medina was convicted of
possessing or purchasing, for sale, cocaine, where cocaine is
an element of the crime. To make this determination, the
agency (and we) may look to only those documents


        Section 11056, or (2) any controlled substance
        classified in Schedule III, IV, or V which is a narcotic
        drug, shall be punished by imprisonment . . . .”

The statute has been amended since Medina’s conviction, but not in
relevant part. The operative, quoted language remains the same.
                 MEDINA-LARA V. HOLDER                      13

sanctioned by Shepard, namely: “the terms of the charging
document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” 544 U.S. at
26.

    We “permit[] reliance on an abstract of judgment in
combination with a charging document to establish that the
defendant pled guilty to a generic crime under the modified
categorical approach.” Ramirez-Villalpando v. Holder,
645 F.3d 1035, 1040 (9th Cir. 2011). Sitting en banc, we
have held that “[i]n order to identify a conviction as the
generic offense through the modified categorical approach,
when the record of conviction comprises only the indictment
and the judgment, the judgment must contain the critical
phrase ‘as charged in the Information.’” United States v.
Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) (quoting
Li v. Ashcroft, 389 F.3d 892, 898 (9th Cir. 2004)).

    Subsequently, we have not been so exacting as to require
that the phrase “as charged in the Information” appear on the
abstract of judgment. E.g., Cabantac v. Holder, 736 F.3d 787
(9th Cir. 2012) (per curiam) (looking to the allegations in a
complaint where the abstract of judgment and transcript of
the plea colloquy clearly referenced the count to which the
defendant pleaded guilty); id. at 793–94 (“We hold that
where, as 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.”); Ramirez-Villalpando, 645 F.3d
at 1041 (similar).
14                 MEDINA-LARA V. HOLDER

    However, we have never retreated from Vidal’s core
requirement: When a court using the modified categorical
approach to determine whether an underlying conviction is a
predicate offense relies solely on the link between the
charging papers and the abstract of judgment, that link must
be clear and convincing. Put another way, where, as here, the
government bears the burden of proof to show by “clear and
convincing evidence” that the § 11351 conviction is a
predicate offense, 8 U.S.C. § 1229a(c)(3)(A); accord Fregozo
v. Holder, 576 F.3d 1030, 1039 (9th Cir. 2009), the
government must demonstrate that the abstract clearly and
convincingly shows that Medina pleaded guilty to the element
as alleged in the complaint.

    The agency relied on two Shepard-approved documents,
a written, amended complaint and an abstract of judgment,
and so we look only to these. The amended complaint, which
alleges five counts of misconduct, seems to have two docket
numbers. The first, typewritten, is “04121514.” The second,
handwritten, is “SS 043284.” The complaint is marked
“Filed in Court” on April 20, 2005. Count “003” of the
complaint alleges that “on or about December 20, 2004, the
crime of possession for sale of a controlled substance, in
violation of Section 11351 of the Health and Safety Code, a
felony, was committed by Jose Luis Medina, who did
willfully and unlawfully possess for sale a controlled
substance, to wit, cocaine.”15 The complaint is certified by
the clerk of the Superior Court of Monterey County,
California.




  15
     In the original document, several portions of the quoted material
appear in all capital letters.
                      MEDINA-LARA V. HOLDER                             15

    Box 1 on the abstract of judgment lists Medina’s two
convictions. The first row in this box deals with Medina’s
§ 11351 conviction. (The second row pertains to the § 11377
conviction. We discuss that conviction below.) Under
“Count,” the document lists “3A.” Under “Code,” it lists
“HS.” Under “Section No.,” it lists “11351.” Under
“Crime,” it lists “Poss cont subs.” Under “Year Crime
Committed,” it lists “2004.”        And under “Date of
Conviction,” it lists “04-20-05.”16

    Box 2 pertains to “Enhancements.” The first line in this
box (and the only line containing any information) lists under
“Count” the number “3” and under “Enhancement” the
reference to “PC 12022(c).”17 The only other relevant “box”
on this form appears toward the top-right corner. It is labeled
“-A” and contains this number: “SS043284A.”

    Here, the government has failed to carry its burden of
showing a clear and convincing link between the abstract and
the charging papers. The abstract states Medina pleaded to
count “3A,” not count “3” as it is denominated in the
complaint. The Tacoma Immigration Judge posited that the
“3A” reflected that the third count of the complaint contained
both the § 11351 charge and the § 12022 enhancement, in that
order, and so the “A” referred to the main charge rather than
the count as a whole or the enhancement. The government
defends this theory and also advances its own, namely, that
the “3A” refers to the “-A” box toward the upper right-hand
side of the abstract, in which a docket number is printed.


 16
    Other information pertaining to Medina’s sentence is also listed. It is
not relevant to this petition.
 17
      This line also contains sentencing information irrelevant here.
16                  MEDINA-LARA V. HOLDER

    While these are both plausible explanations of what the
abstract might mean, they suffer a common and fatal flaw.18
If, as the IJ posited, the “3A” were a function of the
bifurcation of the third count of the complaint, we would
expect the enhancement listed on this same abstract to be
coded “3B.” Likewise, as the government argues in the
alternative, if the “A” in the “3A” relates to the case number
in the corner box, we would expect the enhancement to be
coded “3A.” But the enhancement is coded “3” with no letter
appended, casting significant doubt on both of the
government’s theories.

    While the government’s theories are certainly plausible,
just as plausible is that the “A” in “3A” stands for
“amended.” Indeed, the record suggests that count 3 might
have been amended beyond even the written amendment in
the administrative record. The San Francisco IJ noted that
“there is a disconnect between . . . the charging document and
the abstract because the counts don’t correspond.” By way of
explaining why this might be, the IJ went on to speculate that
“there must have been a super[s]eding charging document at
some time.” The DHS attorney seemed to agree, saying, “We
need to get the super[s]eding indictment.” Moreover, because
California allows for indictments to be amended orally in
open court, see People v. Sandoval, 43 Cal. Rptr. 3d 911,
926–27 (Cal. Ct. App. 2006), there would not necessarily be
any written record of a superseding indictment in the state
court papers.



  18
     Even if the government’s alternative argument were persuasive, we
could not entertain it because we lack authority to affirm the Board on any
ground not stated in its decision. Navas v. I.N.S., 217 F.3d 646, 658 n.16
(9th Cir. 2000).
                 MEDINA-LARA V. HOLDER                     17

    Against this backdrop, we are hard-pressed to say that
there is a “clear and convincing” link between the “3A” in the
abstract and the “3” in the amended complaint. There are
three competing explanations for the extra letter, and none is
wholly satisfactory. And, problematically, this still does not
exhaust the ambiguities between the documents.

    The docket number on the abstract also has an
unexplained “A” appended to it. The IJ speculated that this
extra letter was the result of a “clerical error.” Standing
alone, perhaps this would not negate an otherwise clear and
convincing showing. But, as we have discussed above, this
extra letter is far from the only ambiguity in the purported
link between the complaint and the abstract and may also
refer to an amended complaint not present in the
administrative record.

    We note that the record does not contain any serious
suggestion that Medina was apprehended with any substance
other than one controlled by federal law. But, as we observed
above, under Descamps, whether Medina actually possessed
or purchased, for sale, cocaine “makes no difference.” 133 S.
Ct. at 2286. We must look only to the elements to which
Medina pleaded guilty. Because on this record it is not “clear
and convincing” what Medina pleaded guilty to, it has not
been established that his § 11351 conviction is an aggravated
felony or a controlled substance offense.
18                   MEDINA-LARA V. HOLDER

II. The § 12022 Conviction

    Medina also challenges the agency’s holding that his
§ 12022 conviction19 is a firearm offense as that term is
defined by 8 U.S.C. § 1227(a)(2)(C).20 Here, unlike the
§ 11351 conviction discussed above, the agency stopped at
the first step of the Taylor-Descamps analysis, holding that
the statute of conviction is a categorical match to the generic
offense.

    For this proposition, the agency relied on Gil v. Holder,
651 F.3d 1000 (9th Cir. 2011). Indeed, Gil seems on point,
and if Gil were still good law, it would appear to preclude
Medina’s challenge. Recognizing this, Medina directs us to
our recent decision in United States v. Aguilera-Rios, – F.3d
–, 2014 WL 4800292 (9th. Cir. Sept. 29, 2014), which holds
that Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), overruled
Gil. The government contends that Aguilera-Rios does not
control the outcome here.

   Medina has the better argument. The issue in Gil was
whether California’s definition of “firearm” was a categorical

  19
     The version of § 12022(c) in effect in 2004, the time of Medina’s
arrest, provides, in relevant part, that “any person who is personally armed
with a firearm in the commission of a violation or attempted violation of
Section 11351 . . . of the Health and Safety Code, shall be punished by an
additional and consecutive term of imprisonment in the state prison for
three, four, or five years.”
 20
    The government argues Medina did not administratively exhaust this
argument. Because the Board clearly addressed it, so, too, may we. Kin,
595 F.3d at 1055. Even if Kin were not the law, Medina’s pro se brief
specifically incorporated into it the arguments presented in a prior filing,
which challenges the agency’s legal conclusion that the § 12022
conviction is a firearms offense.
                    MEDINA-LARA V. HOLDER                           19

match to the federal definition. The INA expressly excludes
“antique firearms” from the generic definition of a “firearm.”
See 8 U.S.C. § 1227(a)(2)(C) (incorporating into this
provision the definition of “firearm” located at 18 U.S.C.
§ 921(a)); 18 U.S.C. § 921(a)(3) (“The term ‘firearm’ . . . .
does not include an antique firearm.”). At the time of his
conviction, the term “firearm” in § 12022 was defined by
former California Penal Code § 12001(b), which does not
exclude antique firearms.21       Thus, a plain language
comparison of the statutes would suggest that § 12001(b) is
overbroad.

    However, the Board had determined in Matter of Mendez-
Orellana, 25 I. & N. Dec. 254, 255–56 (BIA 2010), that the
antique firearm exception was an affirmative defense to
removability, and Gil accepted that reading of the statute.
Because recourse to a hypothetical affirmative defense (i.e.,
one not actually advanced in the underlying proceeding) may
not necessarily impact a subsequent court’s Taylor analysis
of a statute of conviction, Gil held that California’s definition
of a firearm categorically matched the federal definition. Cf.
Aguilera-Rios, 2014 WL 4800292 at *8 n.4 (“We are not
holding that Gil’s distinction between affirmative defenses
and elements of a crime is invalid for all categorical analyses.
Rather, we read Moncrieffe as applying particularly to
definitional provisions, and as holding that as to such
provisions, the allocation of the burden of proof is not
relevant to a categorical analysis.”).



 21
   In 2004, § 12001(b) read: “As used in this title, ‘firearm’ means any
device, designed to be used as a weapon, from which is expelled through
a barrel a projectile by the force of any explosion or other form of
combustion.”
20                MEDINA-LARA V. HOLDER

    Aguilera-Rios holds that Moncrieffe implicitly rejects
Gil’s analysis and mandates the conclusion that California’s
firearm definition is overbroad. 2014 WL 4800292 at *8.
We do not repeat Aguilera-Rios’s reasoning, here; as a three-
judge panel, our task is to determine whether it binds us, or if,
as the government suggests, Aguilera-Rios is distinguishable.
We hold that Aguilera-Rios applies to any California statute
based on the definition of “firearm” formerly appearing at
§ 12001(b). Although the underlying conviction in Aguilera-
Rios was obtained under former California Penal Code
§ 12021(c)(1), that statute incorporates by reference the same
definition of “firearm” as does § 12022(c), the statute of
Medina’s conviction. This is sufficient to bind us to
Aguilera-Rios’s holding.

    The government argues that there is only a “theoretical
possibility” and not a “realistic probability” that California
would prosecute an individual under § 12022(c) where the
firearm in question was antique. See Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007). To support this argument,
the government points to the absence of any reported
California case upholding a § 12022(c) conviction based on
possession of an antique firearm. By contrast, Medina notes
that § 12022(c) simply incorporates by reference the
definition of firearm appearing at former § 12001(b), and that
there are a good many cases in which California obtained a
conviction based on that definition in which the firearm in
question was antique.

    Medina is correct that our inquiry must focus on
California’s interpretation of former § 12001(b) rather than
convictions based on § 12022(c). No conviction could have
arisen under former § 12001(b), because it simply defined the
term “firearm” as used in Title 2 of Part 4 of the California
                 MEDINA-LARA V. HOLDER                      21

Penal Code. Other statutes in that Title criminalize conduct.
It does not matter if the conduct is criminalized by former
§ 12021(c)(1), as in Aguilera-Rios; by § 12022(c), as here; or
by former § 12025(a), as in Gil. Because the common link in
these cases is the § 12001(b) definition of firearm, our
analysis should center on that statute. Indeed, the agency
implicitly conceded as much when it cited Gil to sustain the
firearms charge against Medina. Because Gil analyzed
§ 12025(a), the Board could have applied it to Medina’s case
only if Gil’s holding was rooted in the definition appearing at
former § 12001(b).

    Having framed the inquiry correctly, Medina’s challenge
easily passes the Duenas-Alvarez bar. California obviously
prosecutes individuals for firearm crimes arising under the
former § 12001(b) definition even when the firearm in
question is antique. Aguilera-Rios cites several appellate
cases from the past decade in which California courts held
that, as for example, a “replica muzzle-loading pistol,” a
“family heirloom replica single-shot muzzle-loading rifle
incapable of using modern ammunition,” and a “black
powder, muzzle-loading firearm,” are firearms within the
meaning of former § 12001(b). Aguilera-Rios, 2014 WL
4800292 at *7 (internal quotation marks and citations
omitted); see also, e.g., People v. McGraw, C041322, 2004
WL 928379 (Cal. Ct. App. 2004) (unpub.) (sustaining
conviction where firearm was century-old, disassembled
antique revolver). These recent examples of California
prosecutions demonstrate a “realistic probability” that
California may obtain a conviction based on the § 12001(b)
definition even where the firearm in question is antique.
Thus, because § 12001(b) is overbroad, the Board’s
conclusion that § 12022 is categorically a firearm offense
cannot stand.
22               MEDINA-LARA V. HOLDER

     Although the agency did not assess the divisibility of
former § 12001(b), we may proceed to do so without first
remanding to the Board. Divisibility is a purely legal
question which does not require any additional fact-finding.
Cf. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1080 (9th Cir.
2007) (declining remand where no further fact-finding
remains to be done). We owe no deference to the Board’s
interpretation of a criminal statute it does not administer, see
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1133 (9th Cir.
2006) (en banc), meaning that if we remanded to the Board to
determine whether former § 12001(b) is divisible, we would
review that conclusion de novo rather than under Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984). Mandujano-Real v. Mukasey, 526 F.3d 585, 589 (9th
Cir. 2008). In short, the interests of judicial and
administrative economy dictate that we consider divisibility
at this juncture.

    Former § 12001(b) is indivisible. As we discuss above,
the statute does not even mention antique firearms. Like
California Penal Code § 459, the statute analyzed in
Descamps, former §§ 12001(b) and 12022, when read
together, clearly criminalize a swath of conduct not
contemplated by the generic offense. This is not a situation
where the statute “effectively creates ‘several different
crimes,’” Descamps, 133 S. Ct. 2285 (quoting Nijhawan v.
Holder, 557 U.S. 29, 41 (2009)), where “at least one, but not
all of those crimes matches the generic version.” Id. As in
Descamps, there is “a simple discrepancy between [the]
generic [crime] and the crime established in” the statute of
conviction. Id. This renders the statute indivisible and thus
outside the “narrow range of cases” in which the modified
categorical approach can be employed. Id. at 2283 (quoting
Taylor, 495 U.S. at 602). Accordingly, as a matter of law, we
                 MEDINA-LARA V. HOLDER                     23

hold that Medina’s § 12022 conviction is not a predicate for
removal under 8 U.S.C. § 1227(a)(2)(C).

III.   Disposition of the Petition

    Finally, we must consider how to dispose of this petition.
To recap, because we have determined that, as a matter of
law, Medina’s convictions under § 11351 and § 12022 are not
predicate offenses for removal under the INA, there is no
reason to remand on those counts. There remains, however,
the matter of Medina’s § 11377 conviction.

    Medina asks that we remand with instructions to
terminate the removal proceedings outright. This would be
contrary to our ordinary practice of remanding for further
proceedings consistent with our disposition, leaving to the
agency’s discretion how to proceed (subject, of course, to
subsequent judicial review). See generally Fernandez-Ruiz,
466 F.3d at 1133 (discussing remand rule). However, for a
number of factors this is the rare case where remand is
inappropriate.

    First, the government’s charge of removability based on
the § 11377 conviction suffers the same legal defect as the
agency’s decision to order removal based on the § 11351
conviction: There is no clear and convincing evidence in the
record linking the abstract of judgment and the charging
document. Where, as here, only purely legal issues remain,
it “would serve no purpose” to remand to the agency. Karimi
v. Holder, 715 F.3d 561, 565 (4th Cir. 2013); see also Ruiz-
Vidal, 473 F.3d at 1080 (declining remand in similar
situation).
24                MEDINA-LARA V. HOLDER

    Second, the government has not suggested how it would
cure this deficiency on remand. In the initial round of
proceedings, the San Francisco IJ gave the government fair
warning that it had a flimsy record in this case. Anticipating
the eventual need to turn to the modified categorical
approach, the IJ granted many continuances, several of which
were for the express purpose of allowing the government to
supplement the record. And while the government could
have introduced additional evidence before the Tacoma IJ, it
did not do so. The government’s failure over the course of
several years to produce any Shepard-compliant documents
relevant to the § 11377 conviction suggests its ultimate
inability to do so. Cf. Ruiz-Vidal, 473 F.3d at 1080 (declining
to remand where “the record on remand would consist only
of those documents already in the record”).

    Third, we note that in its 2010 order the Board affirmed
the San Francisco IJ’s determination that the § 11377
conviction rendered Medina removable. The Board’s
subsequent sua sponte reopening of the case vacated that
order, Plasencia-Ayala v. Mukasey, 516 F.3d 738, 745 (9th
Cir. 2008), overruled on other grounds by Marmolejo-
Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en
banc), and so it is not before us today. We do not know why
the agency, which once believed that the § 11377 conviction
was sufficient to order removal, decided to ignore that
conclusion in the second round of administrative proceedings.
But it is clear that DHS has had ample opportunity to build
the record. Two different IJs and the Board have considered
the § 11377 conviction, but ultimately did not rest their
decision upon that ground. The government has given us no
reason to provide it a “third bite at the apple,” Siwe v. Holder,
742 F.3d 603, 611–12 (5th Cir. 2012) (internal brackets
omitted) (quoting Zhu v. Gonzales, 493 F.3d 588, 602 (5th
                 MEDINA-LARA V. HOLDER                     25

Cir. 2007)), especially since it has considered the issue, see
Pascua v. Holder, 641 F.3d 316, 319 (9th Cir. 2011) (denying
remand where agency had considered a potentially dispositive
issue twice previously).

     Fourth, under our case law, the government is precluded
from relitigating the § 11377 issue. In the immigration
context, a party is precluded from relitigating an issue where
“(1) the issue at stake was identical in both proceedings;
(2) the issue was actually litigated and decided in the prior
proceedings; (3) there was a full and fair opportunity to
litigate the issue; and (4) the issue was necessary to decide
the merits.” Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir.
2012). Here, the government put the § 11377 issue at stake
when it charged Medina with removability on the basis of that
conviction. The issue was actually litigated before the San
Francisco IJ, before the Board in 2010, and then again before
the Tacoma IJ, all while Medina remained in DHS detention.
Furthermore, for the reasons described above, the government
has had a full opportunity to litigate the immigration
consequences of the § 11377 issue. And finally, whether
Medina’s § 11377 conviction is a removable offense is
obviously necessary to determine his ultimate removability.
With these factors in mind, we hold the government is
precluded from relitigating the § 11377 issue.

                      CONCLUSION

    The government has failed to carry its burden to show by
clear and convincing evidence that Medina has been
convicted of an aggravated felony or a controlled substance
offense.   Similarly, Supreme Court case law issued
subsequent to the agency action reviewed here has foreclosed
on the government’s contention that Medina had been
26              MEDINA-LARA V. HOLDER

convicted of a firearm offense. Because a substantive remand
is inappropriate for the reasons stated above, we GRANT
Medina’s petition for review, VACATE the removal order,
and REMAND to the agency with the instruction that it grant
Medina’s motion to terminate proceedings.

     PETITION GRANTED.
