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Sandoval v. Yates

United States Court of Appeals, Ninth Circuit

January 27, 2017

Leonel Sandoval, AKA Lione Sandoval, Petitioner,
v.
Sally Q. Yates, Acting Attorney General, Respondent.

          Argued and Submitted November 8, 2016 Portland, Oregon

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A090-808-120

          Brian Patrick Conry (argued), Portland, Oregon, for Petitioner.

          Song E. Park (argued), Senior Litigation Counsel; Cindy S. Ferrier, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: M. Margaret McKeown, William A. Fletcher and Raymond C. Fisher, Circuit Judges.

         SUMMARY[**]

         Immigration

         The panel granted Leonel Sandoval's petition for review of the Board of Immigration Appeals' decision finding him ineligible for cancellation of removal based on his conviction for delivery of a controlled substance under Oregon Revised Statutes § 475.992(1)(a), and remanded.

         The panel held that the Oregon law is not a categorical aggravated felony, because its definition of "delivery" includes mere solicitation, and the federal Controlled Substances Act does not punish soliciting delivery of controlled substances. The panel further held that because no "commercial element" is included in the Oregon statute, it is not a categorical match to an "illicit trafficking" offense.

         The panel also held that the modified categorical approach does not apply because the Oregon law is indivisible with respect to whether an "attempt" is accomplished by solicitation.

          OPINION

          FISHER, Circuit Judge.

         Sandoval was convicted of delivery of a controlled substance under Oregon Revised Statutes § 475.992(1)(a).[1]Oregon law permits conviction for delivery under this statute based on mere solicitation. Because the Controlled Substances Act does not punish soliciting delivery of controlled substances, § 475.992(1)(a) cannot be a categorical match to an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Further, because § 475.992(1)(a) is indivisible, the modified categorical approach does not apply. Therefore, we grant Sandoval's petition and remand for further proceedings.

         I

         Leonel Sandoval moved to the United States from Mexico when he was nine years old. He adjusted to lawful permanent resident status in 1990. His wife of over 26 years and two children are United States citizens.

         In 1998, Sandoval was convicted of delivery of a controlled substance under Oregon law. The indictment identified the controlled substance as heroin. He performed community service at a forest project and was placed on probation for two years. Since then, he has not been convicted of any other criminal activity. Twelve years later, the government instituted removal proceedings against him. It alleged two grounds for removal based on Sandoval's 1998 conviction: (1) that the conviction was an aggravated felony and (2) that the conviction was related to a controlled substance. See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). Under the second charge, Sandoval could seek cancellation of removal based on his long-standing residence and family ties in the United States. But the first charge made him ineligible for such relief. See id. § 1229b(a)(3). Accordingly, Sandoval argued the government had failed to offer clear and convincing evidence he was convicted of an aggravated felony because Oregon's statute is broader than a federal controlled substance offense given that it punishes solicitation in addition to actual and attempted delivery. The IJ and BIA rejected this argument, concluded he was ineligible for cancellation of removal and ordered him removed.

         Sandoval timely petitioned for review. We have jurisdiction and review Sandoval's petition de novo. See 8 U.S.C. § 1252(a)(2)(D); Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010); see also Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997). We do not defer to an agency's interpretations of state law or provisions of the federal criminal code. See Hoang v. Holder, 641 F.3d 1157, 1161 (9th Cir. 2011).

         II

         To determine whether a state criminal conviction is an aggravated felony, we must follow the "categorical approach." See Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). Under this approach, we "compare the elements of the statute forming the basis of the [petitioner's] conviction with the elements of the 'generic' crime - i.e., the offense as commonly understood." Id. Only if the elements in the petitioner's statute of conviction "are the same as, or ...


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