Opinion
18-70106
09-16-2022
ARMANDO VILLASENOR MARQUEZ, AKA Armando Marquez, AKA Armando Marquez Villaseno, AKA Armando Marquez Villasenor, AKA Armando Villaseno Marquez, AKA Armando Villasenor, AKA Armando M. Villasenor, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted August 30, 2022 Pasadena, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A091-849-807
Before: M. SMITH and R. NELSON, Circuit Judges, and DRAIN, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Armando Villasenor Marquez petitions for review of the Board of Immigration Appeals' ("BIA") affirmance of an Immigration Judge's ("IJ") decision ordering him removed from the United States and finding him ineligible for cancellation of removal and voluntary departure. We have jurisdiction under 8 U.S.C. § 1252. See Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017).
1. Marquez first argues that he was eligible for cancellation of removal because there was an insufficient basis to determine that his underlying conviction was an aggravated felony. Marquez was convicted of violating California Health &Safety Code § 11360(a) (2011). The parties do not dispute that § 11360(a) is a divisible statute covering both conduct that qualifies as an aggravated felony and conduct that does not. Thus, we may consult the record to determine whether Marquez's conviction is an aggravated felony. Pereida v. Wilkinson, 141 S.Ct. 754, 762-63 (2021).
Marquez pleaded nolo contendere to a violation of California Health and Safety Code § 11360(a) (2011). Marquez's no-contest plea did not include a factual basis for his conviction. See North Carolina v. Alford, 400 U.S. 25, 37 (1970). At the time of Marquez's removal hearing, the law in this circuit was that an inconclusive record of conviction established an alien's eligibility for discretionary relief. Young v. Holder, 634 F.3d 1014, 1019, 1022-23 (9th Cir. 2011).
Since that time, however, the Supreme Court has held that a petitioner cannot establish his eligibility for cancellation of removal if the record is ambiguous about whether the offense was an aggravated felony. Pereida, 141 S.Ct. at 763 &n.4. Though Pereida was decided after Marquez entered his plea agreement, the rule announced in Pereida applies retroactively. See Hajro v. U.S. Citizenship &Immigr. Servs., 811 F.3d 1086, 1098-99 (9th Cir. 2016). Indeed, our court has already applied the Pereida rule retroactively to a petitioner's ambiguous record of conviction. Marinelarena v. Garland, 6 F.4th 975, 977-78 (9th Cir. 2021) ("Marinelarena II").
Marquez argues that his no-contest plea means his conviction record was not ambiguous, but rather that no factual basis supported his conviction. But the INA asks whether an alien has been convicted of an aggravated felony and does not distinguish between convictions by guilty pleas and no-contest pleas. See 8 U.S.C. § 1229b(a)(3). We have held that convictions resulting from no-contest pleas qualify as convictions when evaluating whether a conviction is an aggravated felony. See Suazo Perez v. Mukasey, 512 F.3d 1222, 1227 n.4 (9th Cir. 2008). And the Supreme Court has indicated that record-keeping problems do not justify an exception for petitioners with ambiguous conviction records. Pereida, 141 S.Ct. at 766-67. What is more, a no-contest plea does not entirely preclude an alien from establishing his eligibility for cancellation of removal. Even before Pereida expanded the types of evidence that can be considered in this context, see id. at 767, courts could consider "the charging documents in conjunction with the plea agreement, the transcript of [the] plea proceeding," and "the facts alleged in a specific count of a complaint where an abstract of judgment or even a minute entry specifies that a defendant pled guilty to that particular count" to determine whether a no-contest plea conviction was an aggravated felony, United States v. Valdavinos-Torres, 704 F.3d 679, 687 (9th Cir. 2012) (citations and emphasis omitted). The Pereida rule applies to Marquez's conviction, and we reject his argument to the contrary.
2. Next, Marquez argues that his case should be remanded so that he can introduce testimonial evidence. Before Pereida, the Supreme Court instructed judges seeking to "ascertain [a] defendant's crime of conviction" to refer "only to a limited set of judicial records." Pereida, 141 S.Ct. at 767 (quotation marks omitted). We construed that command to allow consideration of only a restricted set of judicially noticeable documents of conviction. Marinelarena v. Barr, 930 F.3d 1039, 1045 (9th Cir. 2019) ("Marinelarena I"). But in Pereida, the Supreme Court suggested that "a much broader array of proof" is available, including "a variety of records and attestations[.]" Pereida, 141 S.Ct. at 767.
Though Marquez did not argue that the IJ improperly excluded testimony about the nature of his conviction in his appeal to the BIA or initial notice of appeal, exhaustion is not required when raising the issue would be futile, including when "an issue is entirely foreclosed, such that the agency cannot give it unencumbered consideration." Alvarado v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014). Because our precedent precluded the IJ from considering Marquez's testimony at the time of his removal hearing, see Marinelarena I, 930 F.3d at 1045, Marquez's failure to exhaust does not deprive us of jurisdiction. Thus, we apply our "usual rule" and remand the case to the BIA to apply Pereida's new evidentiary standard, which suggests that the agency can consider evidence beyond the judicially noticeable documents previously allowed. See Marinelarena II, 6 F.4th at 979.
GRANTED IN PART AND DENIED IN PART; REMANDED.
The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation.