Humberto Barbosa v. Merrick Garland, No. 22-1655 (8th Cir. 2023)
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Petitioner, a citizen of Mexico, petitioned for review of a decision of the Board of Immigration Appeals. The Board concluded that Petitioner’s prior conviction in Kansas for possession of methamphetamine made him removable from the United States.
The Eighth Circuit concluded that Petitioner is removable and therefore denied the petition for review. Petitioner contends that the approved instruction allows a prosecutor to charge a defendant with possession of multiple drugs in the alternative. But the instruction calls for insertion of a “controlled substance” in the singular, and recommends that “an alternative charge instruction not be given” because “the defendant cannot be convicted of multiplicitous crimes.”
Petitioner further asserted that drug type must be a “means” of committing the offense because Section 21-5706(c)(1) imposes the same punishment for possession of each substance. But while different punishments would conclusively establish that drug type is an element, equivalent punishments do not show that drug type is a means. The legislature may simply have concluded that each separate drug possession offense deserves the same punishment, regardless of whether the offender possessed cocaine, heroin, or methamphetamine. Accordingly, the court held that the Board correctly concluded Petitioner was removable for committing a controlled substance offense.
Court Description: [Colloton, Author, with Shepherd and Grasz, Circuit Judges] Petition for Review - Immigration. The BIA properly applied the modified categorical approach to determine whether petitioner was convicted of violating a state law relating to a controlled substance listed in the federal drug schedules; under 21 U.S.C. Sec. 812, methamphetamine is a scheduled III controlled substance and so petitioner was convicted of a controlled substance offense and was removable from the U.S.
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