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Ninth Circuit:
Admitted Alien Drug-Dealer Might Be Allowed to Reenter U.S.
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, has created the prospect that a man convicted of being a drug-dealer and deported to his home country of Mexico might be able to regain entry, with the majority declaring that if he had been allowed the statutorily required 10-day period within which to contest the allegation that his offense constituted an “aggravated felony,” he might have been able to do so—a prospect the dissenter contends does not exist.
Circuit Judge Kim Wardlaw and Senior Circuit Judge Andrew D. Hurwitz—colleagues who are frequently paired on panels—signed a memorandum opinion, filed Tuesday, granting a petition for review of a deportation order and remanding the matter to the Board of Immigration Appeals (“BIA”) for further proceedings.
Circuit Judge Consuelo M. Callahan agreed that it was error for the Department of Homeland Security to provide a notice of an intent to issue a final order of deportation and then spring such an order on the same day—rather than waiting 10 days—but protested that the petition by Jaime Ugalde Barron should nonetheless be denied because he “cannot show that he was prejudiced by the government’s regulatory violation.”
Complicating the matter is that the 1998 conviction of Ugalde for possessing methamphetamine for purpose of sale, in violation of California Health & Safety Code §11378, was vacated on July 10, 2024, based on loss of the court file and an inability of the People to show that the defendant was duly advised of the immigration consequences of his guilty plea.
Deportation is prescribed where a defendant is convicted in a state court under a penal provision that mirrors a federal statute the violation of which constitutes an “aggravated felony.” Under federal law, possession of methamphetamine for purpose of sale necessarily comes under that category, but convictions for possessing analogues of that drug with intent to make a sale do not.
Majority Opinion
Wardlaw and Hurwitz wrote:
“Ugalde had a potentially meritorious argument that his conviction under Cal. Health & Safety Code § 11378 was not a categorical match for the aggravated felony definition under the federal removal statute. At least two district courts have held that the California state statute of conviction is broader than the federal generic crime because it defines methamphetamine analogs more broadly than the federal controlled substance statute does.”
They continued:
“We have not yet addressed this question, the resolution of which has the potential to affect the outcome of the removal proceedings. We therefore remand to the agency to afford the opportunity to Ugalde that it denied him through the regulatory violation to address this issue in the first instance, without expressing any view about its appropriate resolution.”
The judges also instructed:
“On remand, the agency should also consider the effect, if any, of the vacatur of Ugalde’s state court conviction.”
Callahan’s Dissent
Callahan argued in her dissent:
“The majority relies on two district court decisions for the proposition that California law defines ‘methamphetamine analogs’ more broadly than federal law does. But methamphetamine analogs are not part of this case. Only methamphetamine is.”
She explained:
“Here, the guilty plea and felony complaint show that Ugalde unlawfully possessed for purpose of sale ‘a controlled substance, to wit, methamphetamine.’ ” The dissenter pointed to two Ninth Circuit opinions—one issued in 2020 and the other in 2022—saying that the California definition of that drug dovetails with the meaning ascribed to the term by federal statute.
The judge maintained that “Ugalde’s conviction under California law constitutes an ‘aggravated felony,’ which contemplates the ‘illicit trafficking in a controlled substance’ like methamphetamine” under federal law.
Oral Argument
Not discussed in the majority’s opinion nor in the dissent is a matter raised by Callahan at oral argument before the panel in Pasadena on Feb. 3: what comes next if—as happened on Tuesday—the petition is granted. Noting that the petitioner is now back in Mexico, she said to Ugalde’s downtown Los Angeles lawyer, Catalina Gracia:
“Let’s say, hypothetically, we grant your petition. All right, how’s he going to come back? He has no legal status.”
Gracia responded:
“He has no legal status but he does have a pending stay of removal that was filed prior to his being physically removed from the U.S. and that stay of removal has not been acted on—there’s no decision on that.”
The majority’s opinion says, in a footnote: “We deny Ugalde’s request for summary disposition…and deny his motion to stay removal…as moot.”
Issue of Mootness
Callahan later asked at oral argument, with reference to Ugalde having been returned to Mexico:
“Wasn’t it kind of moot at this point because he’s gone.”
The lawyer took the stance that her client is “ripe for adjustment” of his immigration status based on the circumstances.
The lawyer pointed out that Ugalde initially entered the U.S. lawfully under an agricultural worker’s permit and that he has a child here who is a U.S. citizen.
Wardlaw and Hurwitz were appointed to the Ninth Circuit by Democratic President Barack Obama and Callahan was chosen by Republican President George W. Bush.
The case is Barron v. Bondi, 23-240.
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