FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE PRIDES MEDINA, 

No. 03-71966 Petitioner,

Agency No.

v.  A35-116-817

JOHN ASHCROFT, Attorney General, OPINION Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 3, 2004—San Francisco, California

Filed January 4, 2005

Before: William C. Canby, Jr., Pamela Ann Rymer, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Canby;

Dissent by Judge Rymer

65
COUNSEL

Vicenta E. Montoya, Las Vegas, Nevada, for the petitioner. 

Susan K. Houser, Jennifer Levings, Department of Justice,

Office of Immigration Litigation, Washington, D.C., for the

respondent. 

OPINION

CANBY, Circuit Judge: 

Jose Valdes Medina1 is a permanent resident of this country, having been admitted as an immigrant from Cuba in 1976.

He petitions for review of an order of removal entered by an

immigration judge (IJ) and affirmed without opinion by a single member of the Board of Immigration Appeals.2

 The IJ

1Petitioner informed the Board that he had never used any name other

than Jose Valdes Medina, and that the references to him in the administrative record under the names of Jose Prides Medina and Jose Valdez

Medina appeared to be a mistake. We refer to him hereafter simply as

“Medina.” 

2When the Board affirms without opinion under its “streamlining” regulations, the decision of the immigration judge becomes the final agency

determination. 8 C.F.R. § 1003.1(e)(4). We therefore review the immigration judge’s decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849

(9th Cir. 2003). 

MEDINA v. ASHCROFT 67
ordered Medina’s removal because the State of Nevada convicted him of attempting to be under the influence of a controlled substance—namely, THC-carboxylic acid.3

[1] The government may remove Medina if his Nevada

conviction “relat[es] 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.” 8 U.S.C. § 1227(a)(2)(B)(i). If Medina was removable

under this provision, we have no jurisdiction to review his

removal. See 8 U.S.C. § 1252(a)(2)(C). If he is not removable

for a controlled substance offense, then we have jurisdiction

and he necessarily prevails. Thus “the jurisdictional question

and the merits collapse into one.” Sareang Ye v. INS, 214 F.3d

1128, 1131 (9th Cir. 2000).4

We conclude that Medina is not removable under section

1227(a)(2)(B)(i) because the government has failed to establish that his Nevada conviction was for “other than a single

offense involving possession for one’s own use of 30 grams

or less of marijuana.”

5

 If that provision regarding possession

of small amounts of marijuana for personal use is to have a

sensible meaning, its protection must extend to the personal

use for which possession is excused. 

We must not be misled by the fact that Medina’s conviction

was for attempting to be under the influence of

THC-carboxylic acid.6 The government concedes that

3THC stands for tetrahydrocannabinol, a controlled substance. 

4We review de novo the question whether a conviction under state law

is a removable offense. See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1151

(9th Cir. 2003) (amended opinion). 

5The government bears the burden of establishing that an alien’s conviction does not fall within the exception for possession of 30 grams or less

of marijuana. See Sandoval v. INS, 240 F.3d 577, 581 (7th Cir. 2001). 

6Medina sought to subpoena an attorney from the state prosecutor’s

office to testify that a person under the influence of marijuana is generally

charged with being under the influence of THC-carboxylic acid. The

application for a subpoena was denied. 

68 MEDINA v. ASHCROFT
THC-carboxylic acid is a metabolite of the human body.7

 The

government also concedes that marijuana use causes a person

to test positive, as Medina did, for THC-carboxylic acid. 

[2] It is true that the body may be caused to produce

THC-carboxylic acid by the use of substances other than marijuana. Use of THC itself,8

 or of hashish, would also cause the

body to produce THC-carboxylic acid, and possession of

small amounts of THC or hashish is not excused under section

1227(a)(2)(B)(i). In analyzing Medina’s conviction for purposes of removal, however, we take a categorical approach

and look to the statutory definition of the crime of conviction.

See Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004). If

the definition of the crime does not establish removability, we

may look beyond it under a “modified” categorical approach

to a limited set of documents in the record of conviction: “the

indictment, the judgment of conviction, jury instructions, a

signed guilty plea, or the transcript from the plea proceedings.” Id.; see also Li v. Ashcroft, No. 02-72597, 2004 WL

2626779, *3 (9th Cir. Nov. 19, 2004). Nothing in the statutory

definition of Medina’s crime or in the specified documents

negates the possibility (indeed the likelihood) that Medina’s

conviction resulted from the personal use of marijuana in an

amount less than 30 grams.9 For all that the controlling docu7Medina offered two articles (only one of which found its way into the

record) that suggest THC-carboxylic acid is the metabolite in the body by

which drug tests detect marijuana, and the government conceded this

proposition at oral argument. See, e.g., United States v. Harper, 22 M.J.

157, 159 n.1 (C.M.A. 1986). 

8THC can be separated from its plant source naturally or produced synthetically. THC-carboxylic acid is different from either synthetic or natural

THC; it is a metabolite of the human body. 

9

If, contrary to authority, we were to look beyond the documents of the

modified categorical approach, see Lara-Chacon v. Ashcroft, 345 F.3d at

1156, we would be left with the only evidence of use in the record: Medina’s testimony in the removal hearing that he had smoked one joint of

marijuana and did not use either THC or hashish on the day of his arrest.

The IJ ruled that “on the basis of both demeanor and the testimony preMEDINA v. ASHCROFT 69
ments reveal, Nevada convicted Medina for his personal use

of a small amount of marijuana. 

[3] The government argues vigorously that marijuana use

cannot come within the provision of section 1227(a)(2)(B)(i)

relating to marijuana possession. This is not a sensible construction of the governing statute. Congress provided that a

person is not subject to removal for “a single offense involving possession for one’s own use of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). It

defies reason to conclude that Congress wanted to protect a

person who possessed marijuana in small amounts for his own

use, but then wanted to remove him from the country if he did

so use it. That is why we observed in Flores-Arellano v. INS,

5 F.3d 360 (9th Cir. 1993), that “the exception for a single

conviction involving personal-use marijuana possession

includes an implicit exception for a single conviction of

actual personal use of marijuana.” Id. at 363. We pointed out

that this interpretation “makes absolute logical sense.” Id. We

noted that use of drugs “has generally been considered a less

serious crime than possession.” Id. at 363 n.5. Indeed, under

the plain words of section 1227(a)(2)(B)(i), it is virtually

impossible to conclude that personal use of less than 30 grams

of marijuana is not an offense “involving possession for one’s

own use of 30 grams or less of marijuana.” Id. (emphasis

added). We therefore conclude that the provision of section

1227(a)(2)(B)(i) negating removability for marijuana possessented, the Court does not have a basis upon which to make an adverse

credibility finding and declines to do so.” No one has suggested that one

joint of marijuana would contain anywhere near the maximum amount of

30 grams of marijuana permitted by section 1227(a)(2)(B)(i). Nor did

Medina’s drug test or his conviction contradict his testimony by showing

that he used more than 30 grams of marijuana (or metabolically produced

an equivalent in THC-carboxylic acid). Indeed, it is hard to resist the conclusion that Congress established the 30-gram limit in order to specify an

amount that, if exceeded, was unlikely to be devoted to personal use rather

than distribution. 

70 MEDINA v. ASHCROFT
sion for one’s own use applies to Medina’s actual use of marijuana. 

[4] Medina has been ordered removed from this country

because he personally used a small amount of marijuana, and

he was convicted because that use showed up in a drug test.

At the least, the government has failed to sustain its burden

of proving otherwise. 

[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 conclude, therefore, that

removal of Medina on the basis of his conviction for attempt

to be under the influence of THC-carboxylic acid is not authorized by section 1227(a)(2)(B)(i). We accordingly have jurisdiction over Medina’s petition for review, and he prevails on

the merits. 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; REVERSED

and REMANDED. 

RYMER, Circuit Judge, dissenting: 

The majority’s opinion turns on its view that “Medina has

been ordered removed from this country because he personally used a small amount of marijuana.” Maj. op. at 71. The

problem is, this is not at all why Medina was ordered

MEDINA v. ASHCROFT 71
removed. He was ordered removed based on his controlled

substance conviction for the offense of attempting to be under

the influence of THC-carboxylic acid in violation of Nev.

Rev. Stat. §§ 193.330 and 453.411. 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 8 U.S.C. §§ 802, 812; compare

§ 812(c) Sch. I(c)(10) with § 812(c) Sch. I(c)(17); see also

Nev. Admin. Code § 453.510. The definition of THC in these

schedules encompasses THC-carboxylic acid.1 In my view,

this satisfies the government’s burden of proving that Medina

was convicted of a controlled substance violation other than

a single offense involving possession for one’s own use of 30

grams or less of marijuana. 

Medina’s argument that THC-carboxylic acid is a metabolite in the body and can be caused by marijuana ingestion

does nothing to undercut this; at best it amounts to an argument that he was charged with the wrong offense. However,

it is too late for this. Medina was represented by counsel and

chose to plead guilty to a THC violation. He did not plead

guilty to possessing 30 grams or less of marijuana intended

for personal use. Nor did he argue that the factual basis for his

plea was insufficient on the ground that what he actually

attempted to be under was the influence of marijuana rather

than THC. Further, Medina pled guilty to a THC use offense,

not to a marijuana possession offense. Because the two substances are separately listed, and Medina admitted that he

attempted to be under the influence of THC, the government

has shown that he was ordered removed based on a controlled

substance offense other than a violation for possession of 30

grams or less of marijuana intended for personal use. We

therefore lack jurisdiction under 8 U.S.C. §§ 1252(a)(2)(C)

and 1227(a)(2)(B)(i), and should dismiss the case. 

1

8 U.S.C. § 812 provides: “Unless specifically excepted or unless listed

in another schedule, any material, compound, mixture, or preparation,

which contains any quantity of . . . Tetrahydricannabinols” falls under

Schedule I. 

72 MEDINA v. ASHCROFT