                  FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JOSE PRIDES MEDINA,                        No. 03-71966
                         Petitioner,
                 v.                         Agency No.
                                            A35-116-817
JOHN   ASHCROFT, Attorney General,
                                              OPINION
                       Respondent.
                                       
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                  Argued and Submitted
        November 3, 2004—San Francisco, California

                    Filed January 4, 2005

  Before: William C. Canby, Jr., Pamela Ann Rymer, and
          Michael Daly Hawkins, Circuit Judges.

                  Opinion by Judge Canby;
                  Dissent by Judge Rymer




                             65
                         MEDINA v. ASHCROFT                            67


                             COUNSEL

Vicenta E. Montoya, Las Vegas, Nevada, for the petitioner.

Susan K. Houser, Jennifer Levings, Department of Justice,
Office of Immigration Litigation, Washington, D.C., for the
respondent.


                              OPINION

CANBY, Circuit Judge:

   Jose Valdes Medina1 is a permanent resident of this coun-
try, having been admitted as an immigrant from Cuba in 1976.
He petitions for review of an order of removal entered by an
immigration judge (IJ) and affirmed without opinion by a sin-
gle member of the Board of Immigration Appeals.2 The IJ




  1
     Petitioner informed the Board that he had never used any name other
than Jose Valdes Medina, and that the references to him in the administra-
tive record under the names of Jose Prides Medina and Jose Valdez
Medina appeared to be a mistake. We refer to him hereafter simply as
“Medina.”
   2
     When the Board affirms without opinion under its “streamlining” regu-
lations, the decision of the immigration judge becomes the final agency
determination. 8 C.F.R. § 1003.1(e)(4). We therefore review the immigra-
tion judge’s decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849
(9th Cir. 2003).
68                        MEDINA v. ASHCROFT
ordered Medina’s removal because the State of Nevada con-
victed him of attempting to be under the influence of a con-
trolled substance—namely, THC-carboxylic acid.3

   [1] The government may remove Medina if his Nevada
conviction “relat[es] to a controlled substance (as defined in
section 802 of Title 21), other than a single offense involving
possession for one’s own use of 30 grams or less of marijua-
na.” 8 U.S.C. § 1227(a)(2)(B)(i). If Medina was removable
under this provision, we have no jurisdiction to review his
removal. See 8 U.S.C. § 1252(a)(2)(C). If he is not removable
for a controlled substance offense, then we have jurisdiction
and he necessarily prevails. Thus “the jurisdictional question
and the merits collapse into one.” Sareang Ye v. INS, 214 F.3d
1128, 1131 (9th Cir. 2000).4

   We conclude that Medina is not removable under section
1227(a)(2)(B)(i) because the government has failed to estab-
lish that his Nevada conviction was for “other than a single
offense involving possession for one’s own use of 30 grams
or less of marijuana.”5 If that provision regarding possession
of small amounts of marijuana for personal use is to have a
sensible meaning, its protection must extend to the personal
use for which possession is excused.

  We must not be misled by the fact that Medina’s conviction
was for attempting to be under the influence of
THC-carboxylic acid.6 The government concedes that
  3
     THC stands for tetrahydrocannabinol, a controlled substance.
  4
     We review de novo the question whether a conviction under state law
is a removable offense. See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1151
(9th Cir. 2003) (amended opinion).
   5
     The government bears the burden of establishing that an alien’s convic-
tion does not fall within the exception for possession of 30 grams or less
of marijuana. See Sandoval v. INS, 240 F.3d 577, 581 (7th Cir. 2001).
   6
     Medina sought to subpoena an attorney from the state prosecutor’s
office to testify that a person under the influence of marijuana is generally
charged with being under the influence of THC-carboxylic acid. The
application for a subpoena was denied.
                          MEDINA v. ASHCROFT                              69
THC-carboxylic acid is a metabolite of the human body.7 The
government also concedes that marijuana use causes a person
to test positive, as Medina did, for THC-carboxylic acid.

   [2] It is true that the body may be caused to produce
THC-carboxylic acid by the use of substances other than mar-
ijuana. Use of THC itself,8 or of hashish, would also cause the
body to produce THC-carboxylic acid, and possession of
small amounts of THC or hashish is not excused under section
1227(a)(2)(B)(i). In analyzing Medina’s conviction for pur-
poses of removal, however, we take a categorical approach
and look to the statutory definition of the crime of conviction.
See Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004). If
the definition of the crime does not establish removability, we
may look beyond it under a “modified” categorical approach
to a limited set of documents in the record of conviction: “the
indictment, the judgment of conviction, jury instructions, a
signed guilty plea, or the transcript from the plea proceed-
ings.” Id.; see also Li v. Ashcroft, No. 02-72597, 2004 WL
2626779, *3 (9th Cir. Nov. 19, 2004). Nothing in the statutory
definition of Medina’s crime or in the specified documents
negates the possibility (indeed the likelihood) that Medina’s
conviction resulted from the personal use of marijuana in an
amount less than 30 grams.9 For all that the controlling docu-
  7
     Medina offered two articles (only one of which found its way into the
record) that suggest THC-carboxylic acid is the metabolite in the body by
which drug tests detect marijuana, and the government conceded this
proposition at oral argument. See, e.g., United States v. Harper, 22 M.J.
157, 159 n.1 (C.M.A. 1986).
   8
     THC can be separated from its plant source naturally or produced syn-
thetically. THC-carboxylic acid is different from either synthetic or natural
THC; it is a metabolite of the human body.
   9
     If, contrary to authority, we were to look beyond the documents of the
modified categorical approach, see Lara-Chacon v. Ashcroft, 345 F.3d at
1156, we would be left with the only evidence of use in the record: Medi-
na’s testimony in the removal hearing that he had smoked one joint of
marijuana and did not use either THC or hashish on the day of his arrest.
The IJ ruled that “on the basis of both demeanor and the testimony pre-
70                        MEDINA v. ASHCROFT
ments reveal, Nevada convicted Medina for his personal use
of a small amount of marijuana.

   [3] The government argues vigorously that marijuana use
cannot come within the provision of section 1227(a)(2)(B)(i)
relating to marijuana possession. This is not a sensible con-
struction of the governing statute. Congress provided that a
person is not subject to removal for “a single offense involv-
ing possession for one’s own use of 30 grams or less of mari-
juana.” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). It
defies reason to conclude that Congress wanted to protect a
person who possessed marijuana in small amounts for his own
use, but then wanted to remove him from the country if he did
so use it. That is why we observed in Flores-Arellano v. INS,
5 F.3d 360 (9th Cir. 1993), that “the exception for a single
conviction involving personal-use marijuana possession
includes an implicit exception for a single conviction of
actual personal use of marijuana.” Id. at 363. We pointed out
that this interpretation “makes absolute logical sense.” Id. We
noted that use of drugs “has generally been considered a less
serious crime than possession.” Id. at 363 n.5. Indeed, under
the plain words of section 1227(a)(2)(B)(i), it is virtually
impossible to conclude that personal use of less than 30 grams
of marijuana is not an offense “involving possession for one’s
own use of 30 grams or less of marijuana.” Id. (emphasis
added). We therefore conclude that the provision of section
1227(a)(2)(B)(i) negating removability for marijuana posses-

sented, the Court does not have a basis upon which to make an adverse
credibility finding and declines to do so.” No one has suggested that one
joint of marijuana would contain anywhere near the maximum amount of
30 grams of marijuana permitted by section 1227(a)(2)(B)(i). Nor did
Medina’s drug test or his conviction contradict his testimony by showing
that he used more than 30 grams of marijuana (or metabolically produced
an equivalent in THC-carboxylic acid). Indeed, it is hard to resist the con-
clusion that Congress established the 30-gram limit in order to specify an
amount that, if exceeded, was unlikely to be devoted to personal use rather
than distribution.
                     MEDINA v. ASHCROFT                       71
sion for one’s own use applies to Medina’s actual use of mari-
juana.

  [4] Medina has been ordered removed from this country
because he personally used a small amount of marijuana, and
he was convicted because that use showed up in a drug test.
At the least, the government has failed to sustain its burden
of proving otherwise.

    [W]hen the documents that we may consult under
    the “modified” approach are insufficient to establish
    that the offense the petitioner committed qualifies as
    a basis for removal . . . we are compelled to hold that
    the government has not met its burden of proving
    that the conduct of which the defendant was con-
    victed constitutes a predicate offense, and the con-
    viction may not be used as a basis for removal.

Tokatly, 371 F.3d at 620-21. We conclude, therefore, that
removal of Medina on the basis of his conviction for attempt
to be under the influence of THC-carboxylic acid is not autho-
rized by section 1227(a)(2)(B)(i). We accordingly have juris-
diction over Medina’s petition for review, and he prevails on
the merits. We grant the petition for review, reverse the order
of removal, and remand the matter to the Board for disposi-
tion consistent with this opinion.

  PETITION FOR REVIEW GRANTED; REVERSED
and REMANDED.



RYMER, Circuit Judge, dissenting:

   The majority’s opinion turns on its view that “Medina has
been ordered removed from this country because he person-
ally used a small amount of marijuana.” Maj. op. at 71. The
problem is, this is not at all why Medina was ordered
72                       MEDINA v. ASHCROFT
removed. He was ordered removed based on his controlled
substance conviction for the offense of attempting to be under
the influence of THC-carboxylic acid in violation of Nev.
Rev. Stat. §§ 193.330 and 453.411. THC is listed as a con-
trolled substance on both the Nevada schedule of controlled
substances and the federal schedule — and it is listed sepa-
rately from marijuana. See 8 U.S.C. §§ 802, 812; compare
§ 812(c) Sch. I(c)(10) with § 812(c) Sch. I(c)(17); see also
Nev. Admin. Code § 453.510. The definition of THC in these
schedules encompasses THC-carboxylic acid.1 In my view,
this satisfies the government’s burden of proving that Medina
was convicted of a controlled substance violation other than
a single offense involving possession for one’s own use of 30
grams or less of marijuana.

   Medina’s argument that THC-carboxylic acid is a metabo-
lite in the body and can be caused by marijuana ingestion
does nothing to undercut this; at best it amounts to an argu-
ment that he was charged with the wrong offense. However,
it is too late for this. Medina was represented by counsel and
chose to plead guilty to a THC violation. He did not plead
guilty to possessing 30 grams or less of marijuana intended
for personal use. Nor did he argue that the factual basis for his
plea was insufficient on the ground that what he actually
attempted to be under was the influence of marijuana rather
than THC. Further, Medina pled guilty to a THC use offense,
not to a marijuana possession offense. Because the two sub-
stances are separately listed, and Medina admitted that he
attempted to be under the influence of THC, the government
has shown that he was ordered removed based on a controlled
substance offense other than a violation for possession of 30
grams or less of marijuana intended for personal use. We
therefore lack jurisdiction under 8 U.S.C. §§ 1252(a)(2)(C)
and 1227(a)(2)(B)(i), and should dismiss the case.
  1
   8 U.S.C. § 812 provides: “Unless specifically excepted or unless listed
in another schedule, any material, compound, mixture, or preparation,
which contains any quantity of . . . Tetrahydricannabinols” falls under
Schedule I.
