Galindo v. Sessions, No. 17-1253 (7th Cir. 2018)Annotate this Case
Galindo, a lawful permanent U.S. resident, had Kentucky convictions for possession of drug paraphernalia and was charged with removability under 8 U.S.C. 1227(a)(2)(B)(i). The IJ applied the categorical approach, under which an alien’s state conviction renders him removable if it “necessarily establishe[s]” a violation of federal law and the modified categorical approach, which applies if a divisible statute proscribes multiple types of conduct, some of which would constitute a removable offense. If a statute is divisible, a court may consult a limited class of documents to determine which alternative formed the basis of the conviction. The IJ determined that Galindo was not removable under the categorical approach because the Kentucky statute criminalizes paraphernalia for drugs that are not proscribed by federal law and that the modified categorical approach does not apply because the paraphernalia statute is not divisible, then terminated the removal proceedings. The BIA reversed, finding no “realistic probability” that Galindo’s conviction involved those drugs, and purported to enter a removal order. The Seventh Circuit vacated. While courts lack jurisdiction to review the BIA determination that the drug-paraphernalia convictions qualify as controlled-substance offenses and may review only a “final order of removal,” 8 U.S.C. 1252, they may vacate based on clear legal error. In this case, the IJ never made the requisite finding of removability; the Board lacked the authority to issue a removal order.