FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH CRISTOPHER YOUNG, aka 

Joseph Christopher Young, No. 07-70949 Petitioner,

Agency No.

v.  A035-029-889

ERIC H. HOLDER JR., Attorney OPINION General,

Respondent. 

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

1769
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 sub1Young’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.

YOUNG v. HOLDER 1773
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

2Cal. 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. 

1774 YOUNG v. HOLDER
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.” 

5The 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. 

YOUNG v. HOLDER 1775
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), with6Pro 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. 

1776 YOUNG v. HOLDER
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

YOUNG v. HOLDER 1777
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.”). 

1778 YOUNG v. HOLDER
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

8This 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. 

YOUNG v. HOLDER 1779
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

1780 YOUNG v. HOLDER
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 Califor10The 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). 

YOUNG v. HOLDER 1781
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 lan11The 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. 

1782 YOUNG v. HOLDER
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

12At 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). 

13The 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). 

14The 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

YOUNG v. HOLDER 1783
[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”). 

1784 YOUNG v. HOLDER
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

YOUNG v. HOLDER 1785
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

1786 YOUNG v. HOLDER
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.

YOUNG v. HOLDER 1787