FILED UNITED STATES COURT OF APPEALS APR 29 2021 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS RICARDO LOPEZ-VILLA, No. 11-73518 Petitioner, Agency No. A045-135-800 v. ORDER MERRICK B. GARLAND, Attorney General, Respondent. Before: W. FLETCHER, N.R. SMITH, and R. NELSON, Circuit Judges. The memorandum disposition filed on September 20, 2019, and reported at Lopez-Villa v. Barr, 777 F. App’x 897 (9th Cir. 2019), is withdrawn. Because the court’s disposition is withdrawn, Respondent’s petition for panel rehearing is moot. A superseding memorandum disposition will be filed concurrently with this order. Further petitions for rehearing and petitions for rehearing en banc may be filed. FILED NOT FOR PUBLICATION APR 29 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICARDO LOPEZ-VILLA, No. 11-73518 Petitioner, Agency No. A045-135-800 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 7, 2016 Resubmitted September 20, 2019 Seattle, Washington Before: W. FLETCHER, N.R. SMITH, and R. NELSON, Circuit Judges. Ricardo Lopez-Villa petitions for review of the dismissal of the appeal of his order of removal by the Board of Immigration Appeals (“BIA”). The BIA affirmed the decision by an Immigration Judge (“IJ”) finding Lopez-Villa removable based on his conviction for trafficking in cocaine, Idaho Code * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 37-2732B(a)(2)(A), as (1) a controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)(i), and (2) an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii). Lopez-Villa challenges his removal based on his conviction of an aggravated felony.1 Because Lopez-Villa is a legal permanent resident, the government bears the burden of proving that he is removable on all charges of removability. See Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010); see also Pereida v. Wilkinson, 141 S. Ct. 754, 761 (2021). Lopez-Villa argues that Idaho Code § 37-2732B(a)(2)(A) is not an aggravated felony because it punishes possession, which is not punishable as a felony offense. See 21 U.S.C. §§ 841, 844. Even assuming Idaho Code § 37-2732B(a)(2)(A) is divisible,2 the government failed to meet its burden of proof. The judgment and amended judgment are inconclusive as to whether Lopez-Villa was convicted of an aggravated felony offense. See Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014) (“When a court using the modified categorical approach to determine whether an underlying conviction is a predicate offense relies solely on the link 1 Lopez-Villa conceded removability as having been convicted of a controlled substance offense. 2 Because it is not necessary to our disposition, we take no position with regard to whether the statute is divisible or indivisible. 2 between the charging papers and the abstract of judgment, that link must be clear and convincing.”). Based on the record before us, we are unable to determine whether Lopez-Villa possessed, manufactured, or delivered a controlled substance. …
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