Opinion
No. C 04-4202-SC.
March 21, 2005
ORDER GRANTING RESPONDENTS' MOTION FOR SUMMARY JUDGMENT
I. Introduction
Petitioner Firas Mohammed Al-Husseini seeks de novo review of the denial of his application for naturalization by the U.S. Citizenship and Immigration Services ("CIS"). Respondents move this Court for an order dismissing the complaint for failure to state a claim upon which relief may be granted, or, in the alternative, for summary judgment in favor of Respondents. Because this Court finds that Respondents have demonstrated that Petitioner was convicted of a predicate offense under the Immigration and Nationality Act ("INA"), Respondents' Motion for Summary Judgment is GRANTED.
II. Background
On February 19, 1991, Petitioner Al-Husseini was convicted of three counts of selling, and offering for sale, cocaine in violation of California Health Safety Code § 11352(a). The conviction was entered after Al-Husseini plead guilty to three counts of a four-count information, and the court sentenced Al-Husseini to a four-year term of imprisonment.
In 2003, Petitioner Al-Husseini submitted an application to CIS for naturalization as an American citizen. CIS determined that Al-Husseini's 1991 conviction rendered him ineligible to naturalize, and denied Al-Husseini's application. Al-Husseini requested and was afforded a hearing, which was held June 29, 2004. On July 12, 2004, CIS issued a final decision in which it concluded that Al-Husseini's 1991 conviction constituted an aggravated felony and therefore rendered him permanently ineligible to naturalize. Pet. Ex. A. This Court has jurisdiction to review the CIS decision pursuant to Al-Husseini's timely filed action.
III. Legal Standard
A district court reviews final determinations on applications for naturalization de novo, making its own findings of facts and conclusions of law. 8 C.F.R. § 336.9(c).
IV. Discussion
Petitioner challenges CIS's determination that he is ineligible to naturalize on two grounds. First, Petitioner asserts that CIS wrongly classified his conviction as constituting an "aggravated felony." Petitioner also argues that CIS erred by employing the date of his conviction, rather than the date of commission of the underlying crime, to determine that Petitioner was barred in perpetuity from establishing good moral character.
A. Aggravated Felony
The Immigration Act of 1990 amended 8 U.S.C. § 1101(f)(8) to bar any person who, at any time after November 29, 1990, has been convicted of an "aggravated felony" from establishing the good moral character requisite for naturalization. Immigration Act of 1990, Pub.L. 101-649, § 509(a), 104 Stat. 4978 (1990). "Aggravated felony" is defined to include illicit trafficking in a controlled substance (as defined in Section 802 of Title 21) and drug trafficking (as defined in Section 924(c) of Title 18). A conviction under a state drug law will constitute an "aggravated felony for immigration purposes only if it would be punishable as a felony under federal drug laws or the crime contains a trafficking element." Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004).
Al-Husseini was charged with and convicted of violating California Health Safety Code § 11352(a). Thus, this Court must first determine whether an offense under this state drug statute qualifies as an aggravated felony for immigration purposes. In making this determination, the Ninth Circuit instructs that this Court must first "look to the statute under which the person was convicted and compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. 1101(a)(43)." Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir. 2004) (citing Taylor v. United States, 495 U.S. 575, 602 (1990). Making a "categorical comparison," the offense is deemed an aggravated felony "if and only if the full range of conduct covered by [the criminal statute] falls within the meaning of that term." Chang v. INS, 307 F.3d 1185, 1189 (9th Cir. 2002). If the statute criminalizes a range of conduct, some of which might not constitute an aggravated felony, then the statute is deemed overbroad, and this Court must proceed to a "modified categorical approach." Id.
The Ninth Circuit explains the modified approach thus:
Under the modified categorical approach, we conduct a limited examination of documents in the record of conviction. Upon this examination, we determine whether there is sufficient evidence to conclude that the alien was convicted of the elements of the generically defined crime even though his or her statute of conviction was facially overinclusive. The record of conviction consists of a narrow, specified set of documents that includes "the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment." Like the immigration judge and the BIA, we may not "look beyond the record of the conviction itself to the particular facts underlying the conviction." If the record of conviction does not establish that the offense the petitioner committed qualifies as an aggravated felony, the government has not met its burden of proving that the defendant committed an aggravated felony.Ferreira, 390 F.3d at 1095 (citations omitted).
Applying the foregoing analysis, this Court finds that the statute under which Al-Husseini was convicted, California Health Safety Code § 11352(a), is too broad to establish on its face that Al-Husseini was convicted of an "aggravated felony" under the INA. The statute clearly criminalizes a wider range of conduct than that which constitutes a drug trafficking offense under federal laws. In fact, the Ninth Circuit has twice held that identical language in other California statutes is overbroad and cannot facially indicate an aggravated felony because it criminalizes solicitation of the prohibited acts and offers to administer or give away the controlled substance. See United States v. Navidad-Marcos, 367 F.3d 903, 907 (9th Cir. 2004) (Cal. Health Safety Code § 11379(a)); United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc) (Cal. Health Safety Code § 11360(a)).
California Health Safety Code § 11352(a) provided, in relevant part, that: "Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer or give away, or attempts to import into this state or transport (1) any controlled substance [as specified elsewhere] . . . shall be punished by imprisonment in the state prison for three, four, or five years."
B. Modified Categorical Approach
Given that Al-Husseini's conviction does not facially qualify as an aggravated felony, this Court must employ the modified categorical approach to "determine whether other judicially noticeable facts exist in the record that would prove such a qualification." Rivera-Sanchez, 247 F.3d at 909. Under this approach, "the government has the burden to establish clearly and unequivocally the conviction was based on all of the elements of a qualifying predicate offense." Navidad-Marcos, 367 F.3d at 908 (citing United States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir. 2002). If the record of conviction is ambiguous, in that it is unclear whether defendant was convicted of an offense that qualifies as an aggravated felony or one that does not, the conviction cannot be used as a predicate offense. United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999). Based on the record available, this Court finds that the government has unequivocally established that Al-Husseini was convicted of an aggravated felony.
The government relies on two documents to establish that Al-Husseini committed an aggravated felony: (1) the Information (state charging document) and (2) the Abstract of Judgment. Counts 1, 2, and 4 of the Information charge Al-Husseini with committing the crimes "sell, offer to sell" a controlled substance in violation of § 11352(a). Pet. Ex. B. All three counts further allege that Al-Husseini violated the statute because he "did to sell [sic] and offer to sell a controlled substance, to wit: Cocaine." Id. The Abstract of Judgment indicates that Al-Husseini pled guilty to Counts 1, 2, and 4, and lists the crime as "Sell, Offer to Sell — Cocaine." Pet. Ex. C.
The sale of cocaine constitutes "illicit trafficking in a controlled substance" under 21 U.S.C. § 841(a)(1), and is consequently an aggravated felony under the INA, 8 U.S.C. § 1101(a)(43). Nevertheless, Petitioner maintains that the government has not met its burden of unambiguously establishing that he was convicted of an aggravated felony. Petitioner argues that the facts in his case "mirror" the facts in United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004), in which the Ninth Circuit ruled that the government failed to establish that Defendant was convicted of an aggravated felony. Navidad-Marcos is unavailing, however, because it is pertinently distinguishable from Petitioner's case.
In Navidad-Marcos, the defendant was charged under a broad statute, which the Information failed to narrow down to specific conduct. Id. As a result, only the abstract of judgment identified Defendant's crime as "transport/sell cont. sub." Id. at 908. Observing that the abstract of judgment "is not the judgment of the conviction," but rather a clerical document, the Ninth Circuit held that an abstract of judgment, alone, was insufficient to "establish `unequivocally' that Navidad-Marcos entered a guilty plea to a different charge from the one contained in the Information." Id. at 909. In contrast, Petitioner's Information specifically narrowed the charge against him, listing precisely the conduct which constituted the violation under the broader statute: selling cocaine. Pet. Ex. B. Petitioner's guilty plea, as recorded in the Abstract of Judgment, establishes that he admitted the conduct charged in the Information. As a result, the government relies on two separate documents, which together establish that Petitioner was charged with and entered a guilty plea to an aggravated felony.
C. Date of Conviction Controls
Petitioner also makes an argument that the Immigration Act of 1990 — which amended the INA to bar people convicted of aggravated felonies from showing good moral character — does not apply to Petitioner since his offense occurred prior to the effective date of the amendment. The Immigration Act of 1990 provided that the amendment replacing "murder" with "aggravated felony" would "take effect on the date of the Enactment of this Act and shall apply to convictions occurring on or after such date." Immigration Act of 1990, Pub.L. 101-649, § 509(b), 104 Stat. 4978 (1990).
Petitioner's offenses were committed in June and July 1990, and he was convicted of these offenses on February 19, 1991. This Court finds that, by the clear language of the statute, it is the date of Petitioner's conviction that determines whether the amendment applies. Because the Immigration Act of 1990 became effective on November 29, 1990 and Petitioner was not convicted until February 19, 1991, the amendment applies to Petitioner's conviction where he was clearly convicted of an aggravated felony after the amendment took effect.
V. Conclusion
This Court finds that Petitioner was clearly convicted of an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43). Consequently, Respondents' Motion for Summary Judgment is HEREBY GRANTED and hearing decision on Petitioner's application for naturalization is affirmed.
IT IS SO ORDERED.