                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 24 2011

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




                            FOR THE NINTH CIRCUIT



DARLENE DE FATIMA AVILA,                         No. 07-72965

              Petitioner,                        Agency No. A037-587-584

  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 October 12, 2011
                               Pasadena, California

Before: PREGERSON and D.W. NELSON, Circuit Judges, and LYNN, District
Judge.**

       Darlene De Fatima Avila (Avila) petitions for review of the decision of the

Board of Immigration Appeals (BIA) finding her removable and ineligible for




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for Northern Texas, sitting by designation.
cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We

grant Avila’s petition for review and vacate the order of removal.

      We review the BIA’s determination of purely legal questions de novo.

8 U.S.C. § 1252(a)(2)(D); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th

Cir. 2004). While this Court lacks jurisdiction to review legal claims that were not

presented to the BIA, 8 U.S.C. § 1252(d)(1), a “petitioner is not limited to raising

issues in exactly the same terms as they were presented to the Board.” Pagayon v.

Holder, 642 F.3d 1226, 1232 (9th Cir. 2011) (citing Vizcarra-Ayala v. Mukasey,

514 F.3d 870, 873 (9th Cir. 2008)). In this case, we find adequate exhaustion.

      The Department of Homeland Security (DHS) must prove by “clear,

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

[removal] are true.” Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir.

1989) (citing Woodby v. INS, 385 U.S. 276, 286 (1966)). DHS charged Avila as

removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II) (providing for removal

following a conviction related to a controlled substance) and

8 U.S.C. § 1182(a)(2)(C) (providing for removal for illicit trafficking). To be

removable under either of these statutory provisions, “the government [is required]

to prove that the substance underlying the alien’s state law conviction . . . is one




                                           2
that is covered by Section 102 of the [Controlled Substances Act (CSA)].” Ruiz-

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

      Avila’s conviction under California Health and Safety Code § 11352(b) is

not categorically a removable offense. “California regulates the possession and

sale of numerous substances that are not similarly regulated by the CSA,” Ruiz-

Vidal, 473 F.3d at 1078. Therefore, we cannot determine from the state statutory

definition alone whether a conviction pursuant to Section 11352(b) relates to a

controlled substance under 8 U.S.C. § 1182(a)(2)(A)(i)(II) or constitutes an illicit

trafficking offense under 8 U.S.C. § 1182(a)(2)(C) sufficient to render Avila

removable. Taylor v. United States, 495 U.S. 575, 600 (1990). Consequently, we

must use the modified categorical approach to determine whether, based on the

administrative record, Avila’s conviction qualifies as a predicate offense for

removal purposes. Id. at 600.

      DHS presented to the immigration judge (IJ) only three judicially cognizable

documents relating to Avila’s 2002 conviction to support the charges of removal

against her. DHS submitted a certified copy of the criminal complaint, a “Waiver

of Rights[,] Plea of Guilty/No Contest” form, and a minute order. Neither the plea

agreement nor the minute order specify the controlled substance at issue in Avila’s

conviction.


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      In analyzing the record of conviction, we are permitted to 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. Corona-Sanchez, 291 F.3d 1201,

1211 (9th Cir. 2002) (en banc), superseded on other grounds by statute as

explained in United States v. Gomez-Mendez, 486 F.3d 599, 604-05 (9th Cir.

2007). However, “a charging document does not, standing alone, demonstrate that

the crime charged and the crime of conviction are one and the same. Something

else must connect the two.” Pagayon, 642 F.3d at 1233.

      Based on the administrative record submitted to the IJ, we cannot determine

whether Avila’s conviction pursuant to Section 11352(b) involved a federally

prohibited controlled substance. While the complaint against Avila identifies

heroin, which is a drug listed in Schedule I of the CSA, 21 C.F.R. §

1308.11(c)(11), the plea agreement and minute order are silent as to the nature of

the controlled substance. Nothing connects the crime charged to the crime of

conviction. Since the documents submitted by DHS are inconclusive, we are left

to speculate, “[b]ut speculation is not enough.” Ruiz-Vidal, 473 F.3d at 1079.

      The government urges us to consider additional evidence to determine

whether Avila is removable as charged. The government cites to an unpublished


                                          4
decision by the California Court of Appeal for the Sixth District, which appears to

rely on the transcript of Avila’s plea proceeding. The opinion states that Avila

“pleaded guilty to a ‘violation of . . . section 11352(b), as alleged in the complaint

in count 2 . . . .’” People v. Avila, 2010 WL 3623639 at *2 (Cal. Ct. App. 2010).

      Petitions for review generally are evaluated based on “the record of the

pleadings, evidence adduced, and proceedings before the agency.”

28 U.S.C. § 2347(a). We may consider additional evidence if a party demonstrates

that “(1) the additional evidence is material; and (2) there were reasonable grounds

for failure to adduce the evidence before the agency.” 28 U.S.C. § 2347(c).

Avila’s plea proceeding occurred on January 3, 2002, more than three years before

the initiation of Avila’s removal proceedings, yet DHS failed to include the plea

colloquy in Avila’s record of conviction. In a case where DHS submitted “some

evidence in support of its position . . . [n]o reason appears why it could not have

introduced sufficient evidence.” Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886

(9th Cir. 2003) (emphasis in original). We decline to consider the additional

evidence submitted by the government to demonstrate that Avila pled guilty “as

alleged.” Considering this evidence now would undermine “the fundamental

principle that, in determining whether a prior conviction constitutes a predicate

offense, we must avoid the enormous problems of re-litigating past convictions,


                                           5
especially in cases where the defendant pleads guilty and there is no record of the

underlying facts.” Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir. 2004) (internal

citations and quotations omitted).

      Because the record of conviction is inconclusive, “the government has not

met its burden of proof, and the conviction may not be used for purposes of

removal.” Tokatly, 371 F.3d at 624. Since Avila is a lawful permanent resident

who is “not subject to removal on the basis charged,” her order of removal “must

accordingly be vacated.” Huerta-Guevara, 321 F.3d at 888.

      Petition GRANTED and Order of Removal VACATED.




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