Young, et al v. Holder

Filing

FILED OPINION (BETTY BINNS FLETCHER, ANDREW J. KLEINFELD and JOHNNIE B. RAWLINSON) DENIED IN PART; GRANTED IN PART. Judge: BBF Authoring, FILED AND ENTERED JUDGMENT. [7627652]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH CRISTOPHER YOUNG, aka
Joseph Christopher Young,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney
General,
Respondent.




No. 07-70949
Agency No.
A035-029-889
OPINION



On Petition for Review of an Order of the
Board of Immigration Appeals
Argued September 8, 2008
Submitted January 28, 2011
Pasadena, California
Filed January 28, 2011
Before: Betty B. Fletcher, Andrew J. Kleinfeld, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge B. Fletcher

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COUNSEL
Katherine Mayer and Natalie Prescott, Latham & Watkins
LLP, San Diego, California, for the petitioner.
David B. Bernal, Ernesto Horacio Molina, Jr., and Siu P.
Wong, Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

OPINION
B. FLETCHER, Circuit Judge:
Joseph Christopher1 Young petitions for review of the
Board of Immigration Appeals’ (“BIA”) decision affirming a
final order of removability. The BIA affirmed the Immigration Judge’s (“IJ”) decision finding Young removable because
of his conviction for an offense relating to a controlled sub-

1

Young’s middle name is spelled several different ways in the record.
Young used the spelling “Christopher” in his brief before the BIA and in
his application for cancellation of removal, so we use that spelling here.

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stance pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) and denying
Young’s application for cancellation of removal. The BIA
held that Young was ineligible for cancellation of removal
because he failed to prove that his 2005 conviction for violating California Health & Safety Code § 11352(a) was not an
“aggravated felony” as defined by the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B).
We deny Young’s petition for review of the order of
removal because he failed to exhaust his claim that his conviction was not for a violation of a law relating to a controlled
substance. We grant Young’s petition for review, however,
with respect to his eligibility for cancellation of removal
because the judicially noticeable documents in the record fail
to establish that his conviction was necessarily for an aggravated felony.
I.

BACKGROUND

Young, a native of St. Kitts and Nevis, is a British citizen.
He was admitted into the United States as a lawful permanent
resident in 1977.
In 2001, Young pled no contest in the Superior Court of
California to one count of violating Cal. Health & Safety
Code § 11352(a).2 In 2004, Young was charged again with
violating Cal. Health & Safety Code § 11352(a). He pled
guilty on February 8, 2005, and was sentenced to 3 years in
prison. On March 31, 2006, the Department of Homeland
Security (“DHS”) served Young with a Notice to Appear
because of the 2005 conviction. The Notice to Appear
2

Cal. Health & Safety Code § 11352(a) states: “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” a specified controlled substance,
unless it was prescribed, shall be punished by imprisonment.

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charged Young with removability both as an alien convicted
of an offense relating to a controlled substance, 8 U.S.C.
§ 1227(a)(2)(B)(i),3 and as an alien convicted of an aggravated felony related to illicit trafficking of a controlled substance, 8 U.S.C. § 1227(a)(2)(A)(iii).4
Young appeared pro se at a hearing before an immigration
judge (“IJ”) on April 26, 2006. He admitted the factual allegation in the Notice to Appear that he had been convicted under
Cal. Health & Safety Code § 11352(a), but he did not concede
removability. He also applied for cancellation of removal.
The hearing was continued to September 5, 2006. Again,
Young appeared pro se. The government produced Young’s
state-conviction record. After hearing argument, the IJ held
Young removable and denied his application for cancellation
of removal. The IJ first held that Young was subject to
removal as an alien convicted of an offense relating to a controlled substance based on his 2005 conviction.5 The IJ then
turned to Young’s application for cancellation of removal. He
held that although the statute was overbroad, the record of
conviction established that Young committed an aggravated
felony. He noted that the information in Young’s conviction
recited the conduct prohibited by Cal. Health & Safety Code
§ 11352 in the conjunctive, and therefore that Young necessarily pled guilty to doing every act listed in the statute,
3

8 U.S.C. § 1227(a)(2)(B)(i) states, in relevant part: “Any alien who at
any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United
States, or a foreign country relating to a controlled substance (as defined
in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.”
4
8 U.S.C. § 1227(a)(2)(A)(iii) states: “Any alien who is convicted of an
aggravated felony at any time after admission is deportable.”
5
The IJ held that Young’s 2001 conviction for violating Cal. Health &
Safety Code § 11352(a) was not an aggravated felony for immigration
purposes because the charge and Young’s guilty plea were inconsistent.
Young’s 2001 conviction is not at issue in this appeal.

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including selling cocaine. The IJ held that because sale of
cocaine is conduct which constitutes illicit trafficking of a
controlled substance, Young was convicted of an aggravated
felony which rendered him both removable and statutorily
ineligible for cancellation for removal.
Young filed a pro se Notice of Appeal and a pro se brief
with the BIA. In both, he challenged the IJ’s finding that the
2005 conviction constituted an aggravated felony. In November 2006, Young obtained pro bono counsel through the BIA
Pro Bono Appeal Project. Pro bono counsel filed a new brief
arguing that charging papers are not sufficient to establish an
aggravated felony and that a plea of guilty to an overlyinclusive statute stated in the conjunctive cannot establish an
aggravated felony.6 Although DHS filed a motion for summary affirmance, it did not file a brief responding to Young’s
arguments.
The BIA dismissed Young’s appeal. The BIA first held that
Young failed to challenge the IJ’s decision that he was removable based on violating a law relating to a controlled substance. Because Young was removable on that ground, the
BIA declined to rule on whether he was also removable for
being convicted of an aggravated felony.
The BIA then upheld the IJ’s finding that Young was ineligible for cancellation of removal. Relying on United States v.
Almazan-Becerra, 456 F.3d 949, 953 (9th Cir. 2006), with6

Pro bono counsel also argued (1) that DHS failed to prove removability by clear and convincing evidence because it did not file a certified
copy of the conviction records; (2) that the IJ must be reversed pursuant
to Lopez v. Gonzales, 549 U.S. 47, 60 (2006) (holding that a state drug
possession offense must be punishable as a federal felony in order to qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B)); (3) that the
IJ erred when he conducted the merit hearings by video; and (4) that the
IJ erred by not ensuring that Young was represented by counsel. The BIA
denied relief on all of these grounds. Young does not appeal the BIA’s
decision on these issues.

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drawn and superseded on other grounds by United States v.
Almazan-Becerra, 482 F.3d 1085 (9th Cir. 2007), the BIA
stated that when an individual pleads guilty to facts stated in
the conjunctive, each factual allegation is taken as true. As a
result, the BIA held that Young’s guilty plea necessarily
admitted that he had committed acts that constituted drug trafficking because the information stated all of the acts prohibited by the statute in the conjunctive and Young presented no
evidence showing that he did not plead guilty to every allegation in the information. Young therefore failed to satisfy his
burden to establish that he had not been convicted of an
aggravated felony. See 8 U.S.C. § 1229a(c)(4); 8 C.F.R.
§ 1240.8(d).
Young filed a timely petition for review in this court.
II.

DISCUSSION

To the extent we have jurisdiction, it is granted by 8 U.S.C.
§ 1252. Because the BIA conducted its own review of the evidence and law, our “review is limited to the BIA’s decision,
except to the extent the IJ’s opinion is expressly adopted.”
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)
(internal quotation marks omitted).
A.

Removability Based on a Violation of a Law Relating
to a Controlled Substance

[1] Young contends that the BIA erred in holding him
removable based on a violation of a law relating to a controlled substance. Relying on Ruiz-Vidal v. Gonzales, 473
F.3d 1072, 1078 (9th Cir. 2007), he argues that the documents
in his record of conviction do not unequivocally establish that
his 2005 conviction under Cal. Health & Safety Code
§ 11352(a) involved a substance regulated by the federal Controlled Substance Act.
[2] We may review a final order of removal only if “the
alien has exhausted all administrative remedies available to

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the alien as of right.” 8 U.S.C. § 1252(d)(1). A petitioner’s
failure to raise an issue to the BIA generally constitutes a failure to exhaust, thus depriving this court of jurisdiction to consider the issue. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th
Cir. 2004). Young “cannot satisfy the exhaustion requirement
by making a general challenge to the IJ’s decision, but, rather,
must specify which issues form the basis of the appeal.”
Morales-Alegria v. Gonzales, 449 F.3d 1051, 1058 (9th Cir.
2006) (quoting Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.
2004)).
[3] Even construing Young’s pro se filings liberally, as we
must,7 we cannot find that Young raised this specific claim
before the BIA. Nowhere in his Notice of Appeal, his pro se
brief, or the brief filed by pro bono counsel does Young question the IJ’s finding that he was convicted for a violation of
a law relating to a controlled substance. We therefore do not
have jurisdiction to review the removal order. See MoralesAlegria, 449 F.3d at 1058-59.
B.

Eligibility for Cancellation of Removal

[4] Young challenges the BIA’s finding that his 2005 conviction for violating Cal. Health & Safety Code § 11352(a)
was an aggravated felony disqualifying him from cancellation
of removal. The conduct prohibited by Cal. Health & Safety
Code § 11352(a) is stated in the disjunctive. Id. (“[E]very person who transports, imports into this state, sells, furnishes,
administers, or gives away . . . any controlled substance
. . . .”). He argues that because the information in his criminal
case merely restated the overly-broad statute in the conjunctive, his guilty plea does not establish that he necessarily committed a drug trafficking offense that would constitute an
aggravated felony.
7

See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008)
(“[P]ro se claims are construed liberally for purposes of the exhaustion
requirement.”).

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We have jurisdiction to review questions of law presented
in petitions for review of final orders of removal, even those
pertaining to otherwise discretionary determinations, pursuant
to 8 U.S.C. § 1252(a)(2)(D). Afridi v. Gonzales, 442 F.3d
1212, 1218 (9th Cir. 2006). “Whether the judicially noticeable
documents in the administrative record establish that [a] controlled substance offense is not an aggravated felony under 8
U.S.C. § 1101(a)(43)(B) is a question of law.” Sandoval-Lua
v. Gonzales, 499 F.3d 1121, 1126 (9th Cir. 2007). We therefore have jurisdiction to review whether the BIA erred when
it held that Young’s 2005 conviction was for an aggravated
felony. We review the BIA’s legal determinations regarding
Young’s eligibility for cancellation of removal de novo.
Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir.
2006).
[5] In order to qualify for cancellation of removal under 8
U.S.C. § 1229b(a), a lawful permanent resident must show
that he: “(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the
United States continuously for 7 years after having been
admitted in any status, and (3) has not been convicted of any
aggravated felony.” Toro-Romero v. Ashcroft, 382 F.3d 930,
937 (9th Cir. 2004) (internal quotation marks omitted).8 The
applicant bears the burden to establish his eligibility for cancellation of removal, and must prove by a preponderance of
the evidence that grounds for mandatory denial of the application for relief do not apply. See 8 C.F.R. § 1240.8(d).9 An
8

This case addresses the version of 8 U.S.C. § 1229b(a) in effect when
Young was convicted.
9
8 C.F.R. § 1240.8(d) states: “The respondent shall have the burden of
establishing that he or she is eligible for any requested benefit or privilege
and that it should be granted in the exercise of discretion. If the evidence
indicates that one or more of the grounds for mandatory denial of the
application for relief may apply, the alien shall have the burden of proving
by a preponderance of the evidence that such grounds do not apply.” The
government furnished the record of conviction, relieving the petitioner of
the obligation to furnish it.

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alien seeking to prove his eligibility for cancellation of
removal carries his burden of establishing by a preponderance
of the evidence that he has not been convicted of an aggravated felony when he submits an inconclusive record of conviction. Sandoval-Lua, 499 F.3d at 1130.
To determine whether a petitioner’s prior conviction fits
within the statutory definition of an aggravated felony, we use
the “categorical approach” and “modified categorical
approach” first announced in Taylor v. United States, 495
U.S. 575 (1990). Alanis-Alvarado v. Mukasey, 558 F.3d 833,
836 (9th Cir. 2009). Under the categorical approach, if the
“full range of conduct” covered by the state statute falls
within the scope of 8 U.S.C. § 1101(a)(43)(B), then the petitioner’s conviction is categorically an aggravated felony and
our inquiry is complete. Id. at 836. If the statute of conviction
prohibits conduct that is not covered by the aggravated felony
provision, then we must use the modified categorical
approach, under which we conduct a limited examination of
documents in the record of conviction to determine whether
there is sufficient evidence to conclude that the petitioner was
convicted of an aggravated felony. Id. Where the prior conviction was based on a guilty plea, our inquiry “is generally
limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the
defendant assented.” Shepard v. United States, 544 U.S. 13,
16 (2005). When applying a modified categorical analysis to
a removal proceeding, we may not consider the administrative
record, including the alien’s own admissions before the IJ, but
must confine our review to the record of conviction. Tokatly
v. Ashcroft, 371 F.3d 613, 623-24 (9th Cir. 2004); see also
Sandoval-Lua, 499 F.3d at 1129 n.7.
[6] The BIA held that Young was ineligible for cancellation of removal because he had not carried his burden to show
that he was not an aggravated felon under 8 U.S.C.
§ 1103(a)(43)(B). Under this section, Young would be an

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aggravated felon if he had been convicted of illicit trafficking
in a controlled substance under 21 U.S.C. § 802 (the Controlled Substance Act), including a drug trafficking crime
under 18 U.S.C. § 924(c).
[7] The government concedes that a conviction under Cal.
Health & Safety Code § 11352(a) is not categorically an illicit
trafficking crime. See also Sandoval-Lua, 499 F.3d at 1128
(holding that a conviction under the nearly identical Cal.
Health & Safety Code § 11379 is not categorically an aggravated felony). Because Cal. Health & Safety Code § 11352(a)
is overly inclusive, we turn to the modified categorical
approach to determine whether the judicially noticeable documents in the record satisfy Young’s burden to establish by a
preponderance of the evidence that his conviction was not for
an aggravated felony.
The record before us contains the following documents
which we may consider under the modified categorical
approach: a felony complaint alleging that Young violated
Cal. Health and Safety Code § 11352(a); an information
charging Young with violating § 11352(a); and a printout of
the Superior Court of California’s electronic docket sheet for
Young’s case.10
The information charged Young as follows:
On or about August 26, 2004, in the County of Los
Angeles, the crime of SALE/TRANSPORTATION/
OFFER TO SELL CONTROLLED SUBSTANCE,
in violation of HEALTH & SAFETY CODE SECTION 11352(a), a Felony, was committed by
JOSEPH CHRISTOPH[sic] YOUNG, who did
unlawfully transport, import into the State of Califor10

The electronic docket sheet is a judicially noticeable document in a
modified categorical analysis. United States v. Strickland, 601 F.3d 963,
968 (9th Cir. 2010) (en banc).

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nia, sell, furnish, administer, and give away, and
offer to transport, import, into the State of California, sell, furnish, administer, and give away, and
attempt to import into the State of California and
transport a controlled substance, to wit, COCAINE
BASE.
The electronic docket sheet entry for February 8, 2005,
shows that Young was “advised of the following: the nature
of the charges against him, the element[sic] of the offense in
the information, and possible defenses to such charges” and
that Young pled guilty. The electronic docket does not include
any findings of fact by the judge, nor does it include a stipulation of facts by Young.
The BIA held that when Young pled guilty he admitted
every act alleged in the information, and therefore the conviction necessarily was for conduct constituting an illicit trafficking offense. The BIA relied upon Almazan-Becerra, in which
we stated that “when a defendant pleads guilty to facts stated
in the conjunctive, each factual allegation is taken as true.”11
456 F.3d at 953 (internal edits omitted).
[8] We have also held, however, that when a petitioner
pleads guilty to a charge that states an overly-broad disjunctive statute in the conjunctive, the guilty plea does not establish that the petitioner committed all the acts prohibited by the
statute. In Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th
Cir. 2007), the petitioner pled guilty in state court to a charge
of “following and harassing.” The charge restated the lan11
The opinion relied upon by the BIA was withdrawn and replaced with
a superseding opinion. The new opinion, however, retains the language
relied upon by the BIA. See Almazan-Becerra, 482 F.3d at 1089. But the
holding has changed; we concluded that when the defendant made a disjunctive plea to a charge stated in the conjunctive, the disjunctive plea did
not “unequivocally establish” that the defendant had committed a drug
trafficking crime. Id. at 1090.

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guage of a disjunctive stalking statute in the conjunctive.12 We
noted that despite the conjunctive charge, “[a]ll that we can
gather from the charge and the bare record of a plea of guilty
. . . [was] that Malta-Espinoza was guilty of either following
or harassing or both.” Id. at 1082.13 As a result, MaltaEspinoza might have been guilty only of harassing. Because
“[h]arassing can involve conduct of which it is impossible to
say that there is a substantial risk of applying physical force
to the person or property of another,” we held that the BIA
erred in finding that Malta-Espinoza had been convicted of a
crime of violence that would render him removable and statutorily ineligible for cancellation of removal as an aggravated
felon under 8 U.S.C. § 1101(43)(F) and 18 U.S.C. § 16(b). Id.
at 1083-84.14
12

At the time of the offense, Cal. Penal Code § 646.9 stated, in relevant
part, that “Any person who willfully, maliciously, and repeatedly follows
or harasses another person and who makes a credible threat with the intent
to place that person in reasonable fear for his or her safety . . . is guilty
of the crime of stalking . . . .” Malta-Espinoza, 478 F.3d at 1081 (emphasis
added). The felony complaint alleged that Malta-Espinoza “did maliciously and repeatedly follow and harass [the victim] . . . .” Id. at 1082
(emphasis added).
13
The Fifth Circuit employed a similar analysis in United States v.
Moreno-Florean, 542 F.3d 445 (5th Cir. 2008). The defendant in that case
pled guilty to kidnapping under Cal. Penal Code § 207(a), and the indictment charged him with accomplishing the kidnapping “wilfully, unlawfully, forcibly and by other means of instilling fear.” Id. at 449-450. The
court concluded defendant had not pled guilty to a crime of violence, stating, “if the indictment alleges elements in the conjunctive, the defendant
can be convicted if the evidence establishes any set of disjunctive elements that together constitute the criminal offense.” Id. at 451 (citations
omitted).
14
The other cases relied upon by the BIA and by the government
involved charges that were narrower than the underlying statute. See
United States v. Smith, 390 F.3d 661, 665 (9th Cir. 2004), amended by 405
F.3d 726 (9th Cir. 2005) (charge under Cal. Penal Code § 459 limited to
willfully and unlawfully entering an inhabited dwelling), United States v.
Williams, 47 F.3d 993, 994-95 (9th Cir. 1995) (charge under section 459
limited to willfully and unlawfully entering a residence). In a third case,
we held that a guilty plea proved the facts required to establish federal

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[9] We have also said that “an indictment that merely
recites the language of the statute . . . is insufficient to establish the offense as generic for purposes of a modified categorical analysis.” United States v. Vidal, 504 F.3d 1072, 1088
(9th Cir. 2007) (en banc). In Vidal, the issue was whether the
defendant necessarily was convicted of a theft offense which
would subject him to a sentence enhancement for being
deported after an aggravated felony. Id. at 1074-75. Vidal
pled guilty to violating Cal. Vehicle Code § 10851(a), which
proscribed theft of a motor vehicle as a principal, as an
accomplice, and as an accessory after the fact; if Vidal was
convicted as an accessory after the fact, his conviction would
not be a generic theft offense. Id. The record consisted of a
charging document that restated the language of the statute
and a written plea and waiver of rights form that indicated
that Vidal pled guilty. Id. at 1087. We held that this record
was insufficient to establish that Vidal necessarily pled guilty
to generic theft as a principal or accomplice. Id. at 1087-1088.
[10] We based our holding in Vidal on two principles.
First, we held that in order to identify a conviction as a
generic offense through the modified categorical approach
when the record contains only the charging document and the
judgment, the judgment must contain “the critical phrase ‘as
charged in the information[.]’ ” Id. at 1087. We drew our
requirement that the judgment contain the words “as charged
in the information” from United States v. Bonat, 106 F.3d
1472, 1477-78 (9th Cir. 1997), in which we made clear that
the information charged the defendant only with the elements
of generic burglary even though the statute proscribed broader
conduct. Second, we stated that an indictment that merely
jurisdiction. United States v. Mathews, 833 F.2d 161, 163 (9th Cir. 1987)
(defendant pled guilty to moving his victim from Oregon to Washington).
See also United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008)
(charge under section 459 narrowed to “enter[ing] an inhabited dwelling
house and trailer coach and inhabited portion of a building”).

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recites the language of the statute is insufficient to establish
an offense as generic under the modified categorical
approach. Vidal, 504 F.3d at 1087.
[11] We have applied Vidal in the immigration context to
hold that a guilty plea to a charge that simply recited the language of the statute was insufficient to establish an aggravated felony that would render the petitioner removable and
ineligible for cancellation of removal. Penuliar v. Mukasey,
528 F.3d 603, 613-14 (9th Cir. 2008). The issue was whether
Penuliar’s conviction under Cal. Penal Code § 10851(a) was
a theft offense constituting an aggravated felony under 8
U.S.C. § 1101(a)(43)(G). See id. at 614. The record of conviction consisted of the felony complaint and an abstract of judgment which indicated a guilty plea. See Penuliar, 528 F.3d at
612. As in Vidal, we held that Penuliar did not necessarily
commit a theft offense where there was a possibility that he
pled as an accessory after the fact. Id. at 613. We held the
record insufficient to establish that Penuliar pled guilty as a
principal because (1) the indictment merely recited the language of the overly-inclusive statute and did not narrow the
charge to generic limits; (2) there were no admissions or
accepted findings of fact confirming the basis for the plea;
and (3) the abstract of judgment did not contain the language
“as charged in the [i]nformation.” Id. at 612-13.
[12] The lesson of Malta-Espinoza, Vidal, and Penuliar is
that a court conducting a modified categorical analysis cannot
rely on only the fact of a guilty plea and a charging document
that merely recite the multiple theories under which a defendant can be convicted under an overly-inclusive statute to
hold that the defendant actually committed a generic offense.
Applying this rule to the present case, we find that the record
is inconclusive and that therefore it cannot be said that
Young’s conviction was necessarily for a drug trafficking
offense that would constitute an aggravated felony.
[13] First, Young pled guilty to an overly-inclusive charge.
The information alleged fourteen possible theories under

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which Young could have violated the statute. The fourteen
listed acts are alternate forms of conduct which satisfy the
actus reus element of the crime. The government is not
required to prove that a defendant did every one of those fourteen acts in order to convict. Rather, it must prove only that
the defendant did at least one of the listed acts. By the same
logic, when Young pled guilty, he admitted that he did at least
one of the acts required to convict him under the statute, not
that he did them all. See Malta-Espinoza, 478 F.3d at 1083
n.3.
[14] Second, Young’s record of conviction contains no
evidence of the specific facts underlying his plea. The information contains no factual allegations beyond specifying that
the crime involved cocaine; the judge made no findings of
fact; and there is no transcript of the plea colloquy or written
plea agreement that would narrow the factual basis for
Young’s conviction to an act constituting an illicit trafficking
offense. See Shepard, 544 U.S. at 26.
[15] Finally, the electronic docket states only that Young
was “advised of the . . . nature of the charges against him
[and] the element [sic] of the offense in the information[.]”
This statement does not establish that Young pled guilty “as
charged in the information” as Vidal requires. Vidal, 504 F.3d
at 1088. It establishes only that Young was informed of the
elements of the offense with which he was charged.
[16] Thus, we hold that the record is inconclusive as to
how Young violated the statute. Because the record is inconclusive, it cannot be said that he necessarily was convicted of
an illicit trafficking offense. Young has therefore met his burden under Sandoval-Lua to show by a preponderance of the
evidence that he is eligible for cancellation of removal.
III.

CONCLUSION

[17] The BIA improperly concluded that Young’s prior
conviction qualifies as an aggravated felony that would render

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him statutorily ineligible for cancellation of removal. That
Young has satisfied his burden to establish that he is eligible
for cancellation of removal does not guarantee that he will
receive relief. See 8 U.S.C. § 1229b(a) (“The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States. . . .”) We
therefore remand this case to the BIA for further proceedings
not inconsistent with this opinion. See INS v. Ventura, 537
U.S. 12, 16-17 (2002); Sandoval-Lua, 499 F.3d at 1133.
The petition is DENIED in part and GRANTED in part.