Sandoval v. Yates, No. 13-71784 (9th Cir. 2017)
Annotate this CasePetitioner seeks review of the IJ and BIA's conclusion that he was ineligible for cancellation of removal, and order of removal. Petitioner's removal was based on his 1998 conviction for delivery of a controlled substance (heroin) under Oregon Revised Statutes 475.992(1)(a). The court concluded that section 475.992(1)(a) is overbroad in its definition of “delivery,” and the modified categorical approach may not be applied because section 475.992(1)(a) is indivisible with respect to whether an “attempt” is accomplished by solicitation. Therefore, the court held that a conviction for delivering heroin under section 475.992(1)(a) is not an aggravated felony. The court granted the petition for review and remanded.
Court Description: Immigration. The panel granted Leonel Sandoval’s petition for review of the Board of Immigration Appeals’ decision finding him ineligible for cancellation of removal based on his conviction for delivery of a controlled substance under Oregon Revised Statutes § 475.992(1)(a), and remanded. The panel held that the Oregon law is not a categorical aggravated felony, because its definition of “delivery” includes mere solicitation, and the federal Controlled Substances Act does not punish soliciting delivery of controlled substances. The panel further held that because no “commercial element” is included in the Oregon statute, it is not a categorical match to an “illicit trafficking” offense. The panel also held that the modified categorical approach does not apply because the Oregon law is indivisible with respect to whether an “attempt” is accomplished by solicitation. SANDOVAL V. YATES 3
The court issued a subsequent related opinion or order on August 8, 2017.
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