Atenia Lorenzo v. Sessions, No. 15-70814 (9th Cir. 2018)
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Where a state statute contains two layers of disjunctive lists, the analysis outlined in Taylor v. United States, 495 U.S. 575 (1990), for applying the categorical approach, applies to both layers of the statute and must be performed twice. A methamphetamine conviction under California Health & Safety Code 11378 or 11379(a) does not qualify as a controlled substance offense under 8 U.S.C. 1227(a)(2)(B)(i).
The Ninth Circuit granted a petition for review of the BIA's order finding petitioner removable for a controlled substance offense. The panel held that the California definition of methamphetamine was broader than the federal definition. The panel also held that the methamphetamine element applicable to a conviction under sections 11378 or 11379(a) was not divisible, because the different varieties of methamphetamine covered by California law were alternative means of committing a single crime rather than alternative elements of separate crimes. Therefore, the panel did not apply the modified categorical approach.
Court Description: Immigration The panel granted Elisio Atenia Lorenzo’s petition for review of a decision of the Board of Immigration Appeals that found Lorenzo removable for a controlled substance offense, holding that: 1) where a state statute contains two layers of disjunctive lists, the analysis outlined in Taylor v. United States, 495 U.S. 575 (1990), for applying the categorical approach, applies to both layers of the statute and must be performed twice; and 2) a methamphetamine conviction under California Health & Safety Code §§ 11378 or 11379(a) does not qualify as a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i), and remanded. The panel explained that § 11378 makes it unlawful to possess for sale a controlled substance specified in certain subdivisions of California Health & Safety Code § 11055, and that § 11379(a) makes it unlawful to transport, import, sell, furnish, administer, or give away a controlled substance specified in certain subdivisions of § 11055. Section 11055, in turn, identifies a list of substances, including methamphetamine and its isomers. The Controlled Substances Act likewise includes methamphetamine and its isomers. However, the panel concluded that the California definition of methamphetamine is broader than the federal definition because the California definition includes both
The court issued a subsequent related opinion or order on January 17, 2019.
The court issued a subsequent related opinion or order on January 17, 2019.
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