                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 04 2014

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

LUCIANO TORRES-TORRES,                           No. 09-73799

              Petitioner,                        Agency No. A034-681-752

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

              Respondent.


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

                     Argued and Submitted February 11, 2014
                            San Francisco, California

Before: CALLAHAN and M. SMITH, Circuit Judges, and HELLERSTEIN, Senior
District Judge.**

       Petitioner Luciano Torres-Torres (Torres), a native and citizen of Mexico

and lawful permanent resident, petitions for review of a decision of the Board of

Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) decision


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
finding him removable under 8 U.S.C. § 1227(a)(2)(B)(i) for committing an

offense related to a controlled substance. The BIA affirmed the IJ’s conclusion

that using the modified categorical approach, the record of conviction for Torres’s

1986 conviction for violating California Health and Safety Code § 11350 showed

that he was convicted of the elements of a controlled substance offense under

federal law. Because the parties are familiar with the facts and procedural history

of this case, we repeat only those facts necessary to resolve the issues raised on

appeal. We grant the petition for review because the BIA erred in finding Torres

removable on account of his 1986 conviction.

      California’s controlled substance schedules are broader than § 102 of the

Controlled Substances Act and, therefore, Torres’s conviction under California

Health and Safety Code § 11350 is not categorically a removable offense. See

United States v. Valdavinos-Torres, 704 F.3d 679, 687 (9th Cir. 2012).

      We must therefore employ the modified categorical approach to determine

whether Torres’s conviction under § 11350 involved a federally prohibited

controlled substance. See id. Under the modified categorical approach, we look to

the documents in the record of conviction, see id., which consists here of the

information, complaint, judgment, and probation order. The information and

complaint provide that Torres was charged with violating California Health and


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Safety Code § 11350 for “hav[ing] in his possession a controlled substance, to wit,

cocaine.” The judgment and probation order, however, state only that Torres was

convicted of violating California Health and Safety Code § 11350, and do not

specify a controlled substance.

      Here, like in Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007), and

United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc), nothing in the

judgment documents allows us to connect the references to cocaine in the charging

documents with the judgment documents. For example, the judgment documents

do not contain the phrase “as charged in the information” or a specific count of

which Torres was convicted. And charging documents alone are insufficient

evidence that an individual pleaded guilty to the elements of the generic crime.

Valdavinos-Torres, 704 F.3d at 687; see also United States v. Velasco-Medina, 305

F.3d 839, 852 (9th Cir. 2002). Further, California’s informal amendment doctrine

allows the government to amend an information without formally filing a written

amendment to the information. See Vidal, 504 F.3d at 1088 (citing People v.

Sandoval, 140 Cal. App. 4th 111, 132–33 (2006)). As such, we can only

“speculate as to the nature of the substance,” and cannot unequivocally determine

whether Torres’s conviction under § 11350 involved a federally prohibited

controlled substance. Ruiz-Vidal, 473 F.3d at 1079.


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      Accordingly, the government has not satisfied its burden of proving by clear,

unequivocal, and convincing evidence that Torres was convicted of a crime

relating to a federally controlled substance. Id. at 1076. The BIA thus erred in

finding Torres removable on account of his 1986 conviction.

      For the foregoing reasons, we grant the petition for review. We remand to

the BIA on an open record to consider: (1) whether Torres’s admissions before the

IJ concerning the government’s factual allegations and his removability are

binding; and (2) whether Torres is removable on account of his 2005 conviction.

      PETITION FOR REVIEW GRANTED; REMANDED.




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