JULIO C. FLORES, AKA Julio Flores, AKA Little Diablo Flores v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO C. FLORES, AKA Julio Flores,
AKA Little Diablo Flores,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-73906
Agency No. A070-715-159
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Julio C. Flores, a native and citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.
FILED
JAN 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 2 --

We review de novo questions of law, Medina-Lara v. Holder, 771 F.3d 1106, 1111
(9th Cir. 2014), and we grant the petition for review and remand.
Under the modified categorical approach, the government has not met its
burden of proving by clear and convincing evidence that Flores was convicted of
possessing cocaine base. See id. at 1113. The amended complaint, which charged
Flores with a violation of California Health & Safety Code § 11350(a), is the only
document in the record that specifies that cocaine base was the drug at issue. The
minute order dated February 6, 2013 records Flores’s nolo contendere plea to
“Count 1,” but does not specify whether that count was set forth in the amended
complaint, or the original complaint, which is not in the record. In fact, the minute
order states that Flores pleaded not guilty to the amended complaint. Because the
government has submitted only the amended complaint and the link between it and
the minute order is ambiguous, the government has not satisfied its burden of
proof. See id. at 1114-15 (the government failed to carry its burden where alternate
explanations for ambiguities in the record were plausible, even though the record
did not suggest petitioner possessed any substance other than one controlled by
federal law).
We grant the petition for review and remand for further proceedings.
PETITION FOR REVIEW GRANTED; REMANDED.
13-73906 2

-- 2 of 2 --