FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE REYES RUIZ-VIDAL, 

Petitioner, No. 04-73812

v. Agency No.  A34-639-824 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 20, 2006—San Francisco, California

Filed January 18, 2007

Before: Robert R. Beezer, Diarmuid F. O’Scannlain,

Stephen S. Trott, Circuit Judges.

Opinion by Judge O’Scannlain

775
COUNSEL

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,

California, argued the cause for the petitioner and filed a

brief. 

Jamie M. Dowd, Office of Immigration Litigation, U.S.

Department of Justice, Washington, D.C., argued the cause

for the respondent and filed a brief. Peter D. Keisler, Assistant

Attorney General, and David V. Bernal, Assistant Director,

were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether the Department of Homeland

Security has met its burden of proving that the petitioner is

removable from the United States as an alien convicted of a

law relating to a controlled substance.

I

A

Jose Ruiz-Vidal is a 49 year-old Mexican national who

legally immigrated to the United States in August 1976. On

October 26, 1998, Ruiz-Vidal pleaded nolo contendere in Cal778 RUIZ-VIDAL v. GONZALES
ifornia Superior Court to one count of criminal possession of

methamphetamine, in violation of Cal. Health & Safety Code

§ 11377(a) (the “1998 conviction”). Thereafter, the government sought to have Ruiz-Vidal removed from the United

States on the basis of this conviction. Though Ruiz-Vidal was

found removable by the immigration judge, he was granted

cancellation of removal pursuant to § 240(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(a), which

allows the Attorney General to cancel the removal of an alien

who is a permanent resident if that alien has been a permanent

resident for five years, has resided continuously in the United

States for seven years, and has not been convicted of an

aggravated felony. 

On February 10, 2003, Ruiz-Vidal was charged in California Superior Court with one count of violating Cal. Health &

Safety Code § 11378 (possession of a controlled substance for

purpose of sale) and one count of violating Cal. Health &

Safety Code § 11379(a) (transportation of a controlled substance). The charging document alleged in Count I that RuizVidal had committed a felony, “to wit: POSSESSION FOR

SALE OF A CONTROLLED SUBSTANCE, a violation of

Section 11378 of the HEALTH & SAFETY CODE of California, in that [he] did unlawfully possess for purposes of sale

a controlled substance, to wit: METHAMPHETAMINE.”

Count II alleged that he had committed a felony, “to wit:

TRANSPORTATION OF A CONTROLLED SUBSTANCE,

a violation of Section 11379(a) of the HEALTH & SAFETY

CODE of California, in that [he] did unlawfully transport

METHAMPHETAMINE.” The record contains an abstract of

judgment which shows that on March 24, 2003, Ruiz-Vidal

pleaded guilty in the Superior Court of Alameda County to

one count of violating Cal. Health & Safety Code § 11377(a).

The crime listed on the abstract of conviction was “Possess

Controlled Substance” (the “2003 conviction”). 

B

The Department of Homeland Security (“DHS”) commenced removal proceedings against Ruiz-Vidal on DecemRUIZ-VIDAL v. GONZALES 779
ber 16, 2003 with the issuance of a Notice to Appear, alleging

that he was subject to removal under 8 U.S.C.

§ 1227(a)(2)(A)(iii). That section renders removable an alien

convicted of an aggravated felony as defined in 8 U.S.C.

§ 1101(a)(43)(B), an offense relating to the illicit trafficking

in a controlled substance, as described in Section 102 of the

Controlled Substances Act (“CSA”), 21 U.S.C. § 802. On January 20, 2004, DHS added a second charge, alleging that

Ruiz-Vidal was subject to removal as an alien who, after

admission, had been convicted of a violation of a law relating

to a controlled substance, as that term is defined in the CSA.

8 U.S.C. § 1227(a)(2)(B)(i). For reasons unrelated to this

appeal, DHS eventually dropped the aggravated felony theory

and proceeded only upon the controlled substance theory. 

During a February 4, 2004, hearing, the immigration judge

(“IJ”) admonished the government that it had not yet advised

the court as to what substance was involved in Ruiz-Vidal’s

2003 conviction. The IJ told the government that it would

have to prove that the drug involved was a controlled substance as defined in Section 102 of the CSA.1

 The IJ issued

its oral decision on March 11, 2004. The IJ determined that

the convictions involved methamphetamine, and further stated

that “any substance listed in 11377 are [sic] included within

the federal ambit of Section 102 of the Controlled Substances

Act . . . So the Court does find that they are crimes involving

a controlled substance.” Accordingly, the IJ ordered that

Ruiz-Vidal be removed to Mexico.

C

Ruiz-Vidal appealed the decision of the IJ to the Board of

Immigration Appeals (“BIA” or “Board”). The principal argument raised by Ruiz-Vidal to the Board was that DHS had not

met its burden of proving that the substance which Ruiz-Vidal

1At the hearing before the IJ, Ruiz-Vidal denied DHS’s allegations as

a matter of burden of proof. 

780 RUIZ-VIDAL v. GONZALES
pleaded guilty to possessing in 2003 was a controlled substance under Section 102 of the CSA. On July 22, 2004, the

BIA affirmed without opinion the IJ’s order that Ruiz-Vidal

be removed from the United States to Mexico. Thereafter,

Ruiz-Vidal filed a “Motion to Reconsider” with the BIA,

again raising only one argument: that DHS was required to

prove that the substance involved in the 2003 conviction was

a controlled substance, as defined by Section 102 of the CSA,

and that it had not done so. The Board rejected that argument,

ruling on August 24, 2004, that “[t]he respondent’s motion

fails to identify particular errors of fact or law in our prior

decision. Instead, he merely presents the same arguments

which we previously considered before rendering a decision

in this case. We decline to revisit them.” 

Ruiz-Vidal filed a timely petition for review to this court.

II

A

Ruiz-Vidal first argues that his 1998 conviction cannot

serve as a predicate for his removal because he was granted

cancellation of removal for that conviction. He next argues

that because Cal. Health & Safety Code § 11377(a) punishes

the unauthorized possession of numerous substances not controlled under federal law, DHS was required to establish that

the particular drug underlying the 2003 conviction is one that

is controlled under federal law. He further argues that the

2003 record of conviction is silent as to the drug he was convicted of possessing. 

The government does not argue, either in its briefs or during oral argument, that the record establishes unequivocally

that the substance that formed the basis for Ruiz-Vidal’s 2003

state conviction was controlled under federal law. Instead, the

government’s sole response on appeal is that this case should

be remanded to the BIA so that it has “an opportunity to

RUIZ-VIDAL v. GONZALES 781
decide [this] question and any related issues in the first

instance.”

B

The government must prove by “clear, unequivocal, and

convincing evidence that the facts alleged as grounds of

[removability] are true.” Gameros-Hernandez v. INS, 883

F.2d 839, 841 (9th Cir. 1989) (citing Woodby v. INS, 385 U.S.

276, 286 (1966)). In this case, Ruiz-Vidal was charged with

removability on the basis of his conviction of a controlled

substance offense. 8 U.S.C. § 1227(a)(2)(B)(i).2 That section

provides:

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 [Section 102 of the CSA]), other than a single offense involving possession for one’s own use

of 30 grams or less of marijuana, is deportable.

Id.

[1] The plain language of this statute requires the government to prove that the substance underlying an alien’s state

law conviction for possession is one that is covered by Section 102 of the CSA.3

 This requirement has been both explic2We review de novo whether a conviction is a controlled substances

offense that renders Ruiz-Vidal removable. Cazarez-Gutierrez v. Ashcroft,

382 F.3d 905, 909 (9th Cir. 2004). 

3The government concedes in its brief that this is true: “[T]he government was required to show that Ruiz’s criminal conviction was for possession of a substance not only listed in the California statute under which he

was convicted, but also contained in section 102 of the Controlled Substances Act.” Although we need not accept the government’s concession

on a matter of law, United States v. Miller, 822 F.2d 828, 832 (9th Cir.

1987), as we explain below, we agree with its formulation of the issue. 

782 RUIZ-VIDAL v. GONZALES
itly and implicitly acknowledged in numerous decisions of the

BIA and this court. In Matter of Paulus, 11 I. & N. Dec. 274

(B.I.A. 1965), the Immigration and Naturalization Service

(“INS”) sought to remove an alien on the basis of a conviction

for violating Cal. Health & Safety Code § 11503. The information charged that Paulus “did offer unlawfully to sell and

furnish a narcotic to a person and did then sell and deliver to

such person a substance and material in lieu of such narcotic.”

Id. at 274-75. The deportation proceedings were terminated

by a special inquiry officer, who reasoned that “the record

being silent as to the narcotic involved in the conviction it is

possible that the conviction involved a substance (such as

peyote) which is a narcotic under California law but is not

defined as a narcotic drug under federal law.” Id. at 275. The

INS appealed, and the Board dismissed the appeal, agreeing

with the special inquiry officer that because the record was

silent as to the narcotic involved, it could not be said for

immigration purposes that Paulus had been convicted of a law

relating to narcotic drugs.4Id. The reasoning of Paulus has

been followed by the BIA in other cases as well. See Matter

of Mena, 17 I. & N. Dec. 38, 39 (B.I.A. 1979) (upholding an

order of deportation where the record of conviction revealed

“beyond doubt that the ‘controlled substance’ the respondent

had in his possession was heroin”); Matter of HernandezPonce, 19 I. & N. Dec. 613, 616 (B.I.A. 1988) (noting that

“[p]hencyclidine is listed as a controlled substance under the

Controlled Substances Act”). 

[2] In Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005),

we implicitly acknowledged the requirement that the government prove that the underlying substance is controlled by Section 102 of the CSA. At issue in Medina was whether a

Nevada conviction for attempting to be under the influence of

THC-carboxylic acid rendered an alien removable under 8

U.S.C. § 1227(a)(2)(B)(I). Id. at 1065-67. The court focused

4Although Matter of Paulus was construing the requirements of 8

U.S.C. § 1251, that section has now been transferred to 8 U.S.C. § 1227.

RUIZ-VIDAL v. GONZALES 783
on whether THC-carboxylic acid was akin to marijuana, and

therefore whether the exception for a conviction for one’s

own use of 30 grams or less of marijuana applied to the case.

Id. For our purposes, however, what is important about this

case is that both the majority and dissent acknowledged, at

least implicitly, the requirement that the substance be one that

is controlled under federal law. Id. at 1065 n.3 (“THC stands

for tetrahydrocannabinol, a controlled substance.”); id. at

1067 (Rymer, J., dissenting) (“THC is listed as a controlled

substance on both the Nevada schedule of controlled substances and the federal schedule—and it is listed separately

from marijuana.”); see also Cazarez-Gutierrez, 382 F.3d at

918; Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. 2003) (considering whether a substance is controlled under both state and

federal law in the context of an aggravated felony for drug trafficking).5

 Thus, in order to prove removability, the government must show that Ruiz-Vidal’s criminal conviction was for

possession of a substance that is not only listed under California law, but also contained in the federal schedules of the

CSA.

III

Applying these principles, we must determine whether

either of Ruiz-Vidal’s convictions may serve as a predicate

removal offense for purposes of 8 U.S.C. § 1227(a)(2)(B)(I).

5We acknowledge that many of our decisions have broadly construed

the “relating to” language in 8 U.S.C. § 1227(a)(2)(B)(i). See, e.g., Luu-Le

v. INS, 224 F.3d 911 (9th Cir. 2000) (finding a conviction for possession

of drug paraphernalia to be a controlled substance offense); Johnson v.

INS, 971 F.2d 340, 342-43 (9th Cir. 1992) (finding an alien deportable for

guilty plea to “travel[ing] in interstate commerce . . . with the intention of

distributing the proceeds derived from the unlawful distribution of narcotics and controlled substances”). Nonetheless, we believe that where a conviction for possession of a particular substance is at issue, 8 U.S.C.

§ 1227(a)(2)(B)(i) requires that at a minimum the substance be listed on

the federal schedules. To hold otherwise would be to read out of the statute the explicit reference to Section 102 of the CSA. 

784 RUIZ-VIDAL v. GONZALES
A

[3] We first consider whether Ruiz-Vidal’s 1998 conviction

may serve as a predicate removal offense. We need not be

detained long by this inquiry. Ruiz-Vidal previously was

found removable on the basis of this conviction, but was

granted cancellation of removal. 8 U.S.C. § 1229b. The government is not entitled to a second bite at the apple; it may not

use this conviction again as a predicate removal offense.

B

We next consider whether Ruiz-Vidal’s 2003 conviction

may serve as the predicate offense for his removal as an alien

convicted of a law relating to a controlled substance. 

1

[4] We note that California law regulates the possession

and sale of numerous substances that are not similarly regulated by the CSA. For instance, the possession of apomorphine is specifically excluded from Schedule II of the CSA,

see 21 C.F.R. § 1308.12(b)(1), but California’s Schedule II

specifically includes it. See Cal. Health & Safety

§ 11055(b)(1)(G).6 Cal. Health & Safety Code § 11033 punishes the possession of optical and geometrical isomers; the

CSA, in contrast, generally punishes the possession of optical

isomers alone. 21 C.F.R. § 1300.01(b)(21). We must, therefore, conclude that the IJ was in error in stating that “any substance listed in 11377 are [sic] included within the federal

ambit of Section 102 of the Controlled Substances Act[;]” the

simple fact of a conviction under Cal. Health & Safety Code

§ 11377 is insufficient. We next look to the record of convic6Other substances such as Androisoxazole, Bolandiol, Boldenone,

Oxymestrone, Norbolethone, Quinbolone, Stanozolol, and Stebnolone are

punishable only under California law. See Cal. Health & Safety Code

§ 11056(f). 

RUIZ-VIDAL v. GONZALES 785
tion. See Tokatly v. Ashcroft, 371 F.3d 613, 620, 622 n.8 (9th

Cir. 2004).

2

[5] In undertaking an analysis of the record of conviction,

we “may consider the charging documents in conjunction

with the plea agreement, the transcript of a plea proceeding,

or the judgment to determine whether the defendant pled

guilty to the elements of the generic crime.” United States v.

Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (citing

United States v. Bonat, 106 F.3d 1472, 1476-78 (9th Cir.

1997)). Although charging papers alone are never sufficient,

United States v. Parker, 5 F.3d 1322, 1327 (9th Cir. 1993),

“charging papers may be considered in combination with a

signed plea agreement,” Corona-Sanchez, 291 F.3d at 1211

(citing United States v. Sweeten, 933 F.2d 765, 767, 769-70

(9th Cir. 1991). 

[6] The administrative record in this case contains only two

documents relating to Ruiz-Vidal’s 2003 conviction. The first

charges Ruiz-Vidal with two crimes: (1) a violation of Cal.

Health & Safety Code § 11378 (possession for purpose of

sale); and (2) a violation of Cal. Health & Safety Code

§ 11379(a) (unlawful transportation). In both counts, the

charging document lists the controlled substance underlying

the conviction as methamphetamine. The other document in

the record is an abstract of judgment which states that RuizVidal pleaded nolo contendere to a single charge of violating

Cal. Health & Safety Code § 11377(a). The crime is described

as “Possess Controlled Substance.” 

We were confronted with a similar situation in MartinezPerez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005). In that

case, only three documents were before the court: (1) an

information charging the defendant with second-degree robbery in violation of § 211 of the California Penal Code; (2) a

minute order memorializing a probation violation hearing;

786 RUIZ-VIDAL v. GONZALES
and (3) an abstract of judgment documenting the defendant’s

plea to a violation of § 487(c) of the California Penal Code.

Id. at 1028-29. We held that based upon those documents, it

was not possible to determine whether the defendant had

pleaded guilty to all elements of a theft offense, as generically

defined. We reasoned that because the defendant had pleaded

guilty to an offense different from the one charged in the

information, “[t]he information . . . is not the sort of ‘generically limited charging document’ indicating that the plea necessarily rested on the fact identifying the burglary as a generic

theft offense as defined in Corona-Sanchez.” Id. at 1029. 

[7] We believe Martinez-Perez to be controlling in this situation. As in that case, Ruiz-Vidal did not plead guilty to an

offense that was charged in the information. Here also, the

administrative record contains no plea agreement, plea colloquy, or any other document that would reveal the factual basis

for Ruiz-Vidal’s 2003 conviction. Id. (citing Parilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005)); see also Shepard

v. United States, 544 U.S. 13, 24 (2005) (adhering to Taylor’s

“demanding requirement” that the record of conviction consist only of documents showing that a plea “necessarily

admitted” facts equating to the generic crime). Under

Martinez-Perez, there is simply no way for us to connect the

references to methamphetamine in the charging document

with the conviction under Cal. Health & Safety Code

§ 11377(a). 

[8] We are thus left only to speculate as to the nature of the

substance. But speculation is not enough. “[W]hen the documents that we may consult under the ‘modified’ approach are

insufficient to establish that the offense the petitioner committed qualifies as a basis for removal . . . we are compelled to

hold that the government has not met its burden of proving

that the conduct of which the defendant was convicted constitutes a predicate offense, and the conviction may not be used

as a basis for removal.” Tokatly, 371 F.3d at 620-21. We

therefore conclude that DHS has failed to establish unequivoRUIZ-VIDAL v. GONZALES 787
cally that the particular substance which Ruiz-Vidal was convicted of possessing in 2003 is a controlled substance as

defined in section 102 of the Controlled Substances Act.

C

[9] A final word is in order about the government’s argument that a remand is appropriate in this case under INS v.

Ventura, 537 U.S. 12 (2002). In Ventura, the Supreme Court

cautioned that, generally speaking, “a court of appeals should

remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” Id. at 16. A remand is

especially appropriate where “[t]he agency can bring its

expertise to bear upon the matter; it can evaluate the evidence;

it can make an initial determination; and, in doing so, it can,

through informed discussion and analysis, help a court later

determine whether its decision exceeds the leeway that the

law provides.” Id. at 17. 

But the government’s Ventura argument is misplaced in

numerous respects. First, as we recently explained in

Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006),

Ventura has nothing to do with a case such as this. While in

Ventura new evidence about changed country conditions

could have been introduced on remand, here the record on

remand would consist only of those documents already in the

record. Id. at 1133. And the evidence in the record either supports the finding of removability or it does not. No further

agency expertise is required to make that determination. 

[10] We also think Ventura inapplicable because the record

is clear that the disputed issue in this case was raised not

once, but twice before the Board, which deemed the evidence

in favor of removability to be sufficient. See Fernandez-Ruiz,

466 F.3d at 1133-34 (“Ventura undeniably involved an issue

the BIA had not considered . . . . [B]y contrast, whether the

offense underlying Fernandez-Ruiz’s 2003 conviction was a

crime of domestic violence under federal law is an issue the

788 RUIZ-VIDAL v. GONZALES
BIA has already addressed . . .”). After his initial appeal from

the IJ’s decision was affirmed without opinion, Ruiz-Vidal

filed a Motion to Reconsider which was identical in nearly all

respects to the brief filed in this court. In response to this

Motion, the Board found that “respondent’s motion fails to

identify particular errors of fact or law in our prior decision.

Instead, he merely presents the same arguments which we

previously considered before rendering a decision in this case.

We decline to revisit them.” The Board therefore has ruled on

the issue in the first instance and a remand for reconsideration

would be both unnecessary and inappropriate. 

IV

The judicially noticeable documents in this case fail to support the BIA’s determination that Ruiz-Vidal is removable as

an alien convicted of a law related to a controlled substances

offense. We grant the petition for review, reverse the order of

removal, and remand the matter to the Board for disposition

consistent with this opinion. 

PETITION FOR REVIEW GRANTED.

RUIZ-VIDAL v. GONZALES 789