JORGE ROMERO-MILLAN V. MERRICK GARLAND, No. 16-73915 (9th Cir. 2022)
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The BIA concluded that Petitioner R.M was inadmissible and ineligible for adjustment of status based on his § 13-3415 conviction. Petitioner H.C, who was a lawful permanent resident, was found removable based on his Section 13-3408 conviction. For both petitioners, the agency applied the modified categorical approach to determine that their Arizona convictions were convictions for controlled substances under federal law. However, because Arizona’s list of prohibited drugs is overbroad with respect to federal law, the panel previously certified three questions to the Supreme Court of Arizona: 1) Is A.R.S. Section 13-3415 divisible as to drug type?; 2) Is A.R.S. Section 13-3408 divisible as to drug type?; and 3) Put another way, is jury unanimity required as to which drug or drugs was involved in an offense under either Section 13-3415 or Section 13-3408?
The Supreme Court of Arizona ruled that it had improvidently accepted the first two questions because divisibility pertains solely to federal law, and no Arizona court had addressed the issue. On the third question, the Supreme Court of Arizona concluded that jury unanimity as to the identity of the drug involved was required for a conviction under Section 13-3408.
Based on the Supreme Court of Arizona’s holding that jury unanimity as to the identity of a specific drug is required for a conviction for drug possession under Section 13-3408, the panel held that Section 13-3408 is divisible as to drug type. Accordingly, the panel concluded that the agency did not err in by applying the modified categorical approach to examine H.C record of conviction.
Court Description: Immigration. Denying separate petitions for review filed by Jorge Romero-Millan and Ernesto Hernandez Cabanillas from decisions of the Board of Immigration Appeals, the panel held that: 1) Arizona’s drug possession statute, A.R.S. § 13- 3408, and Arizona’s possession of drug paraphernalia statute, A.R.S. § 13-3415, are divisible as to drug type; and 2) the BIA did not err in concluding that petitioners were convicted of controlled substance offenses that supported their orders of removal. The BIA concluded that Romero-Millan was inadmissible and ineligible for adjustment of status based on his § 13-3415 conviction. Hernandez Cabanillas, who was a ROMERO-MILLAN V. GARLAND 3 lawful permanent resident, was found removable based on his § 13-3408 conviction. For both petitioners, the agency applied the modified categorical approach to determine that their Arizona convictions were convictions for controlled substances under federal law. However, because Arizona’s list of prohibited drugs is overbroad with respect to federal law, the panel previously certified three questions to the Supreme Court of Arizona: 1) Is A.R.S. § 13-3415 divisible as to drug type?; 2) Is A.R.S. § 13-3408 divisible as to drug type?; and 3) Put another way, is jury unanimity required as to which drug or drugs was involved in an offense under either § 13-3415 or § 13-3408? The Supreme Court of Arizona ruled that it had improvidently accepted the first two questions because divisibility pertains solely to federal law, and no Arizona court had addressed the issue. On the third question, the Supreme Court of Arizona concluded that jury unanimity as to the identity of the drug involved was required for a conviction under § 13-3408. However, the court declined to answer that question as to § 13-3415, explaining that a prior state court of appeal decision containing a relevant discussion had not been appealed to it, and therefore, it was reticent to take a position given the possibility of unintended consequences that were not fully addressed by the parties in that case. Although petitioners’ removal orders were based on convictions that could trigger the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C), the panel explained that divisibility is purely a legal question, and therefore, is reviewable under § 1252(a)(2)(D), which exempts “constitutional claims or questions of law” from the jurisdiction-stripping provision. Moreover, the panel explained that the application of the modified categorical 4 ROMERO-MILLAN V. GARLAND approach involves the application of a legal standard to “established facts,” which the Supreme Court in Guerrero- Lasprilla v. Barr, 140 S. Ct. 1062 (2020), held was a reviewable question of law. Based on the Supreme Court of Arizona’s holding that jury unanimity as to the identity of a specific drug is required for a conviction for drug possession under § 13-3408, the panel held that § 13-3408 is divisible as to drug type. Accordingly, the panel concluded that the agency did not err in by applying the modified categorical approach to examine Hernandez Cabanillas’s record of conviction. Assessing the charging documents, plea colloquy, and plea agreement, the panel also concluded that the BIA did not err in determining that the drug underlying Hernandez Cabanillas’s conviction was cocaine, a federally controlled substance. The panel also held that possession of drug paraphernalia under § 13-3415 is divisible as to drug type. Noting that the Supreme Court of Arizona declined to answer the question of jury unanimity with respect to this statute, the panel concluded that the balance of the statutory text, Arizona case law, sentencing guidelines, jury instructions, and a peek at Romero-Millan’s record of conviction favored the conclusion that § 13-341 is divisible as to drug type. Accordingly, the panel concluded that the BIA did not err in by applying the modified categorical approach to Romero- Millan’s record of conviction. Looking to the information to which Romero-Millan pled guilty, the panel concluded that the BIA properly found that his conviction involved cocaine. ROMERO-MILLAN V. GARLAND 5
This opinion or order relates to an opinion or order originally issued on May 4, 2020.
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