FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS MIELEWCZYK, aka Tomasz 

Mielewczyk, No. 07-74246 Petitioner,

Agency No.

v.  A026-825-982

ERIC H. HOLDER JR., Attorney OPINION General,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 2, 2009—Pasadena, California

Filed August 5, 2009

Before: Harry Pregerson, Susan P. Graber, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw

10409
COUNSEL

Sarah K. Jezairian, Snell & Wilmer LLP, Tucson, Arizona,

for the petitioner.

Stuart S. Nickum, Office of Immigration Litigation, Civil

Division, U.S. Department of Justice, Washington, D.C., for

the respondent.

OPINION

WARDLAW, Circuit Judge:

Thomas Mielewczyk petitions for review of the Board of

Immigration Appeals’ (“BIA”) dismissal of his appeal from

the immigration judge’s (“IJ”) order of removal. The BIA and

the IJ found Mielewczyk removable due to his prior state conviction under California Health and Safety Code section

MIELEWCZYK v. HOLDER 10411
11352(a) for offering to transport heroin. We must decide

whether Mielewczyk’s section 11352(a) conviction is a “violation of . . . any law or regulation of a State . . . relating to

a controlled substance (as defined in section 802 of Title 21),”

rendering him removable under 8 U.S.C. § 1227(a)(2)(B)(i).

Because the statute of conviction by its own terms is a state

law “relating to a controlled substance,” and Mielewczyk’s

conviction involved heroin, a controlled substance as defined

in 21 U.S.C. § 802(6), we hold that the BIA correctly found

Mielewczyk removable and deny his petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mielewczyk is a native and citizen of Poland who was

admitted to the United States as a refugee on June 13, 1984,

at the age of thirteen. On October 4, 2005, he received a

waiver of criminal grounds for inadmissibility and readjusted

his status to lawful permanent residency. 

On July 19, 2006, Mielewczyk was charged by information

with two felony counts under California law. Count one

alleged “possession for sale of a controlled substance, in violation of Health and Safety Code section 11351, a felony.”

Count two alleged “sale/transportation/offer to sell controlled

substance, in violation of Health and Safety Code section

11352(a), a felony.” Both counts alleged that the crimes

involved “a controlled substance, to wit, Heroin.” 

Mielewczyk signed a plea agreement that declared he was

accused of “Possession of Heroin for Sale” and “Transportation of Heroin.” He pleaded guilty to count two, charging a

violation of California Health and Safety Code section

11352(a), for the offense of “Transportation of Heroin for

Personal Use.” Mielewczyk was sentenced to one hundred

days in county jail and thirty-six months of probation. Later,

at a hearing to correct its prior order, the California Superior

Court issued a nunc pro tunc order, finding that the factual

basis for Mielewczyk’s plea was “ ‘offering’ to transport a

10412 MIELEWCZYK v. HOLDER
controlled substance for the codefendant within the meaning

of 11352 of the Health and Safety Code as a felony.”

The Department of Homeland Security served Mielewczyk

with a Notice to Appear before an IJ for a removal proceeding. The IJ found Mielewczyk removable as charged under 8

U.S.C. § 1227(a)(2)(B)(i), because his section 11352(a) conviction for offering to transport heroin was a violation of a

state law relating to a controlled substance. The IJ denied

Mielewczyk’s application for asylum, withholding of

removal, and relief under the Convention Against Torture, as

well as his request for voluntary departure.

The BIA also concluded that Mielewczyk was convicted of

a removable offense, affirmed the IJ’s decision, and dismissed

Mielewczyk’s appeal. Mielewczyk’s timely petition for

review raises the sole issue of whether a conviction under

California Health and Safety Code section 11352(a) for offering to transport a controlled substance constitutes a removable

offense pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to

review questions of law when a final order of removal is predicated on a criminal offense. See de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir. 2007). “Whether a

particular conviction is a [removable] offense is a question of

law we review de novo.” Luu-Le v. INS, 224 F.3d 911, 914

(9th Cir. 2000). Therefore, we review de novo the BIA’s legal

conclusion that a state conviction renders an alien removable

under 8 U.S.C. § 1227(a)(2)(B)(i). See id. Our review is limited to the grounds relied upon by the BIA. Andia v. Ashcroft,

359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam).

MIELEWCZYK v. HOLDER 10413
III. DISCUSSION

A. Categorical Approach

To determine whether a conviction constitutes a predicate

offense for removal purposes, “we use the analytical model

constructed by the Supreme Court in Taylor v. United States,

495 U.S. 575 (1990).” United States v. Rivera-Sanchez, 247

F.3d 905, 907 (9th Cir. 2001) (en banc), superseded on other

grounds by U.S.S.G. § 2L1.2 cmt. n.4 (2002), as recognized

in United States v. Narvaez-Gomez, 489 F.3d 970, 977 (9th

Cir. 2007). We first apply the categorical approach, examining only the statutory definition of the crime to determine

whether the state statute of conviction renders an alien removable under the statute of removal. Tokatly v. Ashcroft, 371

F.3d 613, 620 (9th Cir. 2004). 

[1] Under 8 U.S.C. § 1227(a)(2)(B)(i), an alien is removable if that alien is “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).” The operative statutory phrase, “relating to a controlled substance,”

modifies “law or regulation.” See United States v. MezaCorrales, 183 F.3d 1116, 1127 (9th Cir. 1999). The ordinary

meaning of the term “relate” is “to show or establish a logical

or causal connection between.” Webster’s New International

Dictionary 1916 (3d ed. 2002). Thus, we look to the language

of the statute of conviction to determine whether it establishes

a logical or causal connection to a controlled substance as

defined in 21 U.S.C. § 802, section 102 of the Controlled

Substances Act (“CSA”).

California Health and Safety Code section 11352(a) provides that 

every person who transports, imports into this state,

sells, furnishes, administers, or gives away, or offers

10414 MIELEWCZYK v. HOLDER
to transport, import into this state, sell, furnish,

administer, or give away, or attempts to import into

this state or transport [certain substances specified

within the California Uniform Controlled Substances

Act] shall be punished by imprisonment in the state

prison for three, four, or five years.

The plain language of the statute establishes a logical connection between the law and certain controlled substances

because the offense must involve one of the listed controlled

substances. Even offenses that do not require personal contact

with the drug have the requisite connection because “we have

construed the ‘relating to’ language broadly,” to incorporate

laws specifically aimed at controlled substance activity, even

if they do not require the use, possession, transportation, or

sale of controlled substances. Luu-Le, 224 F.3d at 915. 

[2] Section 11352(a) does not, however, categorically

establish a logical connection to a controlled substance as

defined in section 102 of the CSA. Section 102 of the CSA

defines “controlled substances” as those substances listed in

the federal schedules of the CSA. 21 U.S.C. § 802(6). In contrast, California Health and Safety Code section 11352(a)

punishes activities involving controlled substances specified

in the schedules of the California Uniform Controlled Substances Act. See Cal. Health & Safety Code § 11352(a). The

California Uniform Controlled Substances Act defines “controlled substance” to include “numerous substances that are

not similarly regulated by the CSA.” Ruiz-Vidal v. Gonzales,

473 F.3d 1072, 1078 (9th Cir. 2007). Because the statutory

definition of the crime in section 11352(a) embraces activity

related to drugs both listed in the CSA and not listed in the

CSA, an alien convicted under this statute is not categorically

removable under 8 U.S.C. § 1227(a)(2)(B)(i). 

B. Modified Categorical Approach

We therefore turn to the modified categorical approach to

determine Mielewczyk’s removability under 8 U.S.C.

MIELEWCZYK v. HOLDER 10415
§ 1227(a)(2)(B)(i). See Rivera-Sanchez, 247 F.3d at 908.

Under this approach, we determine whether a conviction constitutes a predicate offense for removal by examining “a narrow, specified set of documents that are part of the record of

conviction, including ‘the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript

from the plea proceedings.’ ” Tokatly, 371 F.3d at 620 (quoting Rivera-Sanchez, 247 F.3d at 908). The government has

the burden to prove that the conviction involved “a substance

that is not only listed under California law, but also contained

in the federal schedules of the CSA.” Ruiz-Vidal, 473 F.3d at

1078. 

[3] Here, the charging document and plea agreement in the

administrative record establish that Mielewczyk’s offense

involved heroin, a drug listed in Schedule I of the CSA. See

21 C.F.R. § 1308.11(c)(11) (listing “[h]eroin”). Mielewczyk

argues that the government cannot prove that his conviction

involves a federally controlled substance because the California Superior Court’s nunc pro tunc order, stating that Mielewczyk pleaded guilty to “offering to transport a controlled

substance for the codefendant,” does not specify the controlled substance involved. However, the order’s silence as to

the drug of conviction does not limit our ability to examine

other documents in the record of conviction to determine

whether the offense involved a drug covered by the federal

definition of a controlled substance. Because the charging

document and the plea agreement establish that the crime

involved heroin, the government has met its burden to prove

that Mielewczyk’s conviction involved a substance listed in

the federal schedules of the CSA. Therefore, Mielewczyk’s

conviction under California Health and Safety Code section

11352(a) is a “violation of . . . [a] law or regulation of a State

. . . relating to a controlled substance (as defined in section

802 of Title 21).” 8 U.S.C. § 1227(a)(2)(B)(i).

C. Generic Solicitation Convictions

[4] Mielewczyk argues, that under Coronado-Durazo v.

INS, 123 F.3d 1322 (9th Cir. 1997), and Leyva-Licea v. INS,

10416 MIELEWCZYK v. HOLDER
187 F.3d 1147 (9th Cir. 1999), statutes criminalizing solicitation are not laws relating to controlled substances within the

meaning of 8 U.S.C. § 1227(a)(2)(B)(i). In Coronado-Durazo

and Leyva-Licea, we held that convictions under generic

solicitation statutes do not render an alien removable under 8

U.S.C. § 1227(a)(2)(B)(i), “even when the underlying solicited conduct is a narcotics violation.” Leyva-Licea, 187 F.3d

at 1149; see also Coronado-Durazo, 123 F.3d at 1326. However, California Health and Safety Code section 11352(a) is

not a generic solicitation statute, unlike the statute at issue in

Coronado-Durazo and Leyva-Licea. 

California Health and Safety Code section 11352(a) punishes any 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” certain controlled substances. By contrast, Arizona Revised Statute section 13-1002, the statute at issue in Coronado-Durazo and

Leyva-Licea, punishes any person who, “with the intent to

promote or facilitate the commission of a felony or misdemeanor, . . . commands, encourages, requests or solicits

another person to engage in specific conduct which would

constitute the felony or misdemeanor or which would establish the other’s complicity in its commission.” Mielewczyk

acknowledges the distinction between section 11352 and

generic solicitation statutes. Nonetheless, citing RiveraSanchez and Sandoval-Lua v. Gonzales, 499 F.3d 1121,

1123-24 (9th Cir. 2007), he argues that our case law treats

solicitation statutes specifically aimed at controlled substances offenses in the same way as generic solicitation statutes for removability purposes.

In Rivera-Sanchez, we held that a conviction under California Health and Safety Code section 11360(a) is not categorically an aggravated felony because section 11360(a) includes

solicitation offenses and solicitation is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). 247 F.3d at 909. LikeMIELEWCZYK v. HOLDER 10417
wise, in Sandoval-Lua, we held that a conviction under

California Health and Safety Code section 11379(a) is not categorically an aggravated felony because section 11379(a)

includes solicitation offenses.1 499 F.3d at 1132. These cases

are distinguishable. In each, we did not address whether the

statute of conviction was generic or specifically aimed at controlled substances because we had previously determined that

all solicitation offenses are excluded from the definition of

“aggravated felony” in 8 U.S.C. § 1101(a)(43)(B). See LevyaLicea, 187 F.3d at 1150. This does not suggest, however, that

generic and specific solicitation statutes are to be treated in

the same way for all immigration purposes. The inapplicability of Rivera-Sanchez’s and Sandoval-Lua’s aggravated felony analyses to 8 U.S.C. § 1227(a)(2)(B)(i) was specifically

recognized in Sandoval-Lua, where the petitioner conceded

removability under 8 U.S.C. § 1227(a)(2)(B)(i), while successfully arguing that his section 11379(a) offense was not

categorically an aggravated felony. Thus, the distinction

between a generic solicitation statute or one specifically

aimed at controlled substances is critical when our inquiry is

whether the statute of conviction is a state law relating to controlled substances.

[5] Our holding in Coronado-Durazo, that generic solicitation statutes are not laws relating to controlled substances

within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i), does not

compel us to conclude that any statute that criminalizes solicitation in part is beyond the scope of § 1227(a)(2)(B)(i). In

Coronado-Durazo, we held that solicitation under Arizona

Revised Statute section 13-1002 does not constitute a removable offense within the meaning of § 1227(a)(2)(B)(i).2

 123

1California Health and Safety Code sections 11360(a) and 11379(a) are

largely identical to section 11352(a). Section 11352(a) punishes offenses

involving “controlled substances formerly classified as narcotics,” section

11360(a) punishes offenses involving marijuana, and section 11379(a)

punishes offenses involving “controlled substances formerly classified as

restricted dangerous drugs.” 

2The petitioner in Coronado-Durazo was found removable under 8

U.S.C. § 1251(a)(2)(B)(i), see 123 F.3d at 1324, which was recodified as

8 U.S.C. § 1227(a)(2)(B)(i), see Luu-Le, 224 F.3d at 913. For convenience, we refer to this provision by its current citation. 

10418 MIELEWCZYK v. HOLDER
F.3d at 1323. Analyzing § 1227(a)(2)(B)(i) as covering two

distinct types of removable offenses, we held that “aliens who

have been convicted of violating laws specifically aimed at

the regulation or prohibition of controlled substances are

[removable], as are aliens who have been convicted of conspiracy or attempt to violate such laws.”

3

Id. at 1325. The

petitioner’s offense in Coronado-Durazo did not fall under

either category because the statute of conviction was a generic

solicitation statute, and 8 U.S.C. § 1227(a)(2)(B)(i) “limits

convictions for generic crimes that may result in [removal] to

conspiracy and attempt.” Id. Therefore, our statement that

“solicitation is not a [removable] offense under [8 U.S.C.

§ 1227(a)(2)(B)(i)],” id. at 1326, applied only to violations of

generic solicitation laws.

Likewise, Leyva-Licea addresses only generic solicitation

statutes. The petitioner there “was convicted in Arizona Superior Court for solicitation to possess marijuana for sale in violation of Ariz. Rev. Stat. §§ 13-1002(A) & 13-

3405(A)(2)(B)(5).” 187 F.3d at 1149. Our reference to section

13-3405, which prohibits the possession of marijuana for sale,

3Two of our sister circuits do not follow the Coronado-Durazo

approach in analyzing generic solicitation statutes. In Peters v. Ashcroft,

383 F.3d 302, 306 (5th Cir. 2004), the Fifth Circuit concluded that a solicitation conviction under Arizona Revised Statute section 13-1002 is

related to a controlled substance when the underlying crime is a controlled

substance offense. It reasoned that the solicitation offense was not separable from the underlying crime; thus, “there was a sufficient nexus between

his solicitation conviction and drug-related laws to satisfy the federal statute.” Id. at 309. 

In Mizrahi v. Gonzales, 492 F.3d 156, 163 (2d Cir. 2007), the Second

Circuit followed the Fifth Circuit’s approach and held that a conviction for

solicitation of the sale of drugs under New York’s generic criminal solicitation statute was a violation of a state law relating to a controlled substance. The Second Circuit reasoned that the elements of a criminal

solicitation offense are defined by both the generic solicitation statute and

the statute criminalizing the object of the solicitation. Id. at 160. Thus, it

concluded that when a drug offense is solicited, a generic solicitation statute is a law relating to a controlled substance. Id. at 162. 

MIELEWCZYK v. HOLDER 10419
see Ariz. Rev. Stat. § 13-3405(A)(2)(B)(5), indicates the

underlying crime that the petitioner solicited. The statute of

conviction was Arizona Revised Statute section 13-1002(A),

the same generic solicitation statute involved in CoronadoDurazo. Leyva-Licea, 187 F.3d at 1149.

[6] The characterization of Mielewczyk’s offense as a

solicitation offense4 does not affect our analysis because,

unlike the determination of whether a conviction is categorically an aggravated felony, removability under 8 U.S.C.

§ 1227(a)(2)(B)(i) does not turn on whether the law includes

solicitation offenses. Rather, as explained in CoronadoDurazo, removability under § 1227(a)(2)(B)(i) turns on

whether the statute of conviction is a law relating to controlled substances. 123 F.3d at 1325. State laws specifically

aimed at controlled substance offenses fall within the scope of

§ 1227(a)(2)(B)(i), and section 11352(a) addresses only conduct involving controlled substances. Thus, Mielewczyk’s

argument fails. 

D. Uniform Application of Immigration Law

Mielewczyk also argues that the interest in uniform application of immigration law compels us to conclude that his

solicitation offense does not fall within § 1227(a)(2)(B)(i),

because similar offenses did not render the petitioners in

Coronado-Durazo and Leyva-Licea removable. We disagree.

Both California and Arizona have enacted criminal laws specifically aimed at controlled substances that prohibit offers to

transport narcotic drugs. See Cal. Health & Safety Code

§ 11352(a); Ariz. Rev. Stat. § 13-3407(A)(7). Convictions

under either statute would render an alien removable because

both statutes relate to a controlled substance. 

4We have characterized offering to transport, furnish, and sell controlled

substances as solicitation offenses. See Rivera-Sanchez, 247 F.3d at

908-09. 

10420 MIELEWCZYK v. HOLDER
[7] Moreover, the underlying crimes in Coronado-Durazo

and Leyva-Licea, punished under California law, would not

render an alien removable. Solicitation to possess cocaine, the

underlying crime in Coronado-Durazo, is punishable under

California Penal Code section 653f, a generic solicitation statute. See Cal. Penal Code § 653f(d). Solicitation to possess

marijuana, the underlying crime in Leyva-Licea, is not punishable under California Penal Code section 653f or the California Uniform Controlled Substances Act. See Cal. Penal Code

§ 653f(d); Cal. Health & Safety Code §§ 11000-11651.

Therefore, convictions for the crimes at issue in CoronadoDurazo, in Leyva-Licea, and in this case would carry the same

immigration consequences whether committed in Arizona or

California. That different crimes are similarly described as

solicitation offenses does not trigger uniformity concerns

when the state laws recognize a meaningful distinction

between the crimes.

IV. CONCLUSION

[8] California Health and Safety Code section 11352(a) is

a state law relating to a controlled substance. Mielewczyk’s

charging documents and plea agreement indicate that his

offense involved heroin, a federally controlled substance.

Therefore, the IJ and the BIA properly concluded that

Mielewczyk is removable under 8 U.S.C. § 1227(a)(2)(B)(i).

PETITION DENIED.

MIELEWCZYK v. HOLDER 10421