Juarez Alvarado v. Holder

A petition will be denied under the modified categorical approach that the government met its burden to prove removability based on attempted possession of a controlled substance, even when the court could not consider the indictment because the count as originally charged was dismissed the defendant pled to a lesser charge in a modified count because it could consider a page in the indictment that described the substance as methamphetamine and the statement was specifically incorporated into the plea agreement as the factual basis supporting the guilty plea.

Luis Felipe Juarez Alvarado was born in Mexico in 1968 and was admitted into the United States prior to his first birthday. After a conviction in 2005 for possession of drug paraphernalia, Alvarado “was placed into removal proceedings…but an [Immigration Judge ("IJ")] granted his application for cancellation of removal in December 2007.” In April 2009, Alvarado was indicted on three counts of drug-related offenses by an Arizona grand jury. Alvarado agreed to plead guilty to "[a]ttempted possession of a dangerous dru[g].” The Department of Homeland Security charged Alvarado with removability based on his conviction for a controlled substance offense. Alvarado contested removability “and filed a motion to terminate the removal proceedings, contending that his conviction was not 'categorically a conviction relating to a substance covered by the CSA.'” Alvarado’s motion was denied by an IJ. The IJ acknowledged “that the controlled substance was not specified in the judgment, but conclud[ed] that the drug was identified as methamphetamine in ‘part of th[e] plea agreement.’” Alvarado appealed. The Ninth Circuit held that "[the Court] lack[ed] jurisdiction to reach [Alvarado’s] argument that the Arizona definition of attempt is categorically broader than the federal generic definition"; and, although the indictment did not establish Alvarado's conviction related to methamphetamine, "the government met its burden of establishing that Juarez Alvarado was convicted of a removable controlled substance offense by producing a factual basis for his guilty plea that described the substance as methamphetamine. . . that was [referenced and] incorporated into his written plea agreement." DENIED in part, DISMISSED in part.