FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS April 21, 2020 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court JUAN MANUEL TORRES- LEDESMA, Petitioner, v. No. 19-9530 WILLIAM P. BARR, United States Attorney General, Respondent. PETITION FOR REVIEW FROM AN ORDER OF THE BOARD OF IMMIGRATION APPEALS ORDER AND JUDGMENT * Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges. Juan Manuel Torres-Ledesma is a legal permanent resident who challenges his order of removal to Mexico. He was ordered removed from the United States * After examining the briefs and appellate record, this panel determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1. under 8 U.S.C. § 1227(a)(2)(A)(iii) and (a)(2)(B)(i) after an immigration judge (IJ) determined his conviction under Oklahoma law constituted both an aggravated felony and a controlled substance offense. The Board of Immigration Appeals (BIA) affirmed the IJ’s order of removal, but we reversed and remanded for reconsideration under the correct legal standard applying to whether a state conviction constituted an aggravated felony under federal law. Torres-Ledesma v. Lynch, 608 F. App’x 704 (10th Cir. 2015). On reconsideration the BIA once again concluded that Torres-Ledesma was convicted of an aggravated felony under Oklahoma state law and was therefore removable under § 1227(a)(2)(A)(iii). It did not decide whether he was also removable for a controlled substance violation under (a)(2)(B)(i). Torres- Ledesma now appeals the BIA’s latest decision and argues that his conviction under Oklahoma law was not a felony and therefore cannot be the basis for removability under federal law. He also argues that his conviction was not one for a controlled substance offense and that his removal under § 1227(a)(2)(B)(i) was not proper. Because we agree the government has failed to show clearly and convincingly that Torres-Ledesma’s conviction was a state-law felony, we GRANT his petition for review and REVERSE the BIA. We REMAND for further consideration of whether he was removable under § 1227(a)(2)(B)(i). -2- I. Background Torres-Ledesma is a native and citizen of Mexico who became a legal resident of the United States in November 1999. Soon thereafter he pleaded guilty to using a communication facility in connection with drug trafficking in violation of 13 Okla. Stat. § 176.3(8) and 176.7. 1 He received a deferred sentence of five years’ imprisonment and a one-thousand dollar fine. In 2007, he applied for naturalization. At that point, immigration authorities became aware of his 1999 conviction and the fact that it made him removable under § 1227(a)(2)(A)(iii), which provides for the removal of aggravated felons. 2 Then in June 2008, an Oklahoma court amended his ...
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