Argued and Submitted, Pasadena, California January 6, 2014
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A034-639-824.
The panel withdrew its prior opinion and dissent, filed an amended opinion and dissent, denied a petition for panel rehearing and denied on behalf of the court a petition for rehearing en banc in a case in which the Board of Immigration Appeals found Jose Reyes Alberto Ruiz-Vidal removable because he was convicted of a controlled substance offense.
Denying Ruiz-Vidal's petition for review, the panel held that he was removable because he was convicted of an offense relating to a controlled substance covered by the Controlled Substances Act, due to his no contest plea to simple possession under California Health & Safety Code § 11377(a), a lesser included offense to Count 1 of the Information, sale of methamphetamine in violation of CHSC § 11379(a).
Applying the modified categorical approach, the panel held that clear and convincing evidence in documents permissible for review established that Ruiz-Vidal pleaded to and was convicted of possession of methamphetamine, a controlled substance.
Dissenting, Judge Reinhardt would ask rather whether the record provided clear, unequivocal, and convincing evidence that Ruiz-Vidal was convicted of possessing methamphetamine, and would determine whether his plea to possession of a controlled substance, as a lesser included offense to sale of methamphetamine, necessarily constitutes a conviction for possession of methamphetamine. Judge Reinhardt also wrote that the majority's adoption of a new exception to United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc), for pleas to lesser included offenses as memorialized in a plea colloquy is unwarranted and unwise.
Christopher G. Clark (argued), Catherine R. Holmes and Gregory L. Shiferman, Boston, Massachusetts, for Petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney General, Richard M. Evans and Mary Jane Candaux, Assistant Directors, Michael C. Heyse (argued) and Virginia Lum, Attorneys, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.
Before: Stephen Reinhardt, Alex Kozinski and Richard R. Clifton, Circuit Judges. Opinion by Judge Kozinski; Dissent by Judge Reinhardt.
The opinion and dissent filed on June 17, 2015, and published at 789 F.3d 1065, are hereby withdrawn and replaced by the amended opinion and dissent filed concurrently with this order. With these amendments, Respondent's motion to amend the published decision is granted. The petition for panel rehearing is denied. Judge Reinhardt would grant it. The petition for rehearing en banc is denied. See Fed. R. App. P. 35. No further petitions for panel rehearing or rehearing en banc will be entertained.
Alex Kozinski, Circuit