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Matter of P-B-B-, Respondent
Decided July 23, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Section 13-3407 of the Arizona Revised Statutes, which criminalizes possession of a
dangerous drug, is divisible with regard to the specific “dangerous drug” involved in a
violation of that statute.
FOR RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Hoyt Hoyt, Assistant Chief
Counsel
BEFORE: Board Panel: GREER and O’CONNOR, Appellate Immigration Judges;
SWANWICK, Temporary Appellate Immigration Judge.
O’CONNOR, Appellate Immigration Judge:
In a decision dated May 17, 2019, an Immigration Judge found that the
respondent was removable and ineligible for asylum, withholding of
removal, and protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened
for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51,
at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987;
for the United States Apr. 18, 1988) (“Convention Against Torture”), and
ordered him removed from the United States. The respondent has appealed
from this decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Jamaica who was admitted to
the United States as a lawful permanent resident. On May 17, 2006, he was
convicted of burglary in violation of Arizona law. The Department of
Homeland Security (“DHS”) placed the respondent in removal proceedings
and charged him with removability under section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2018), as an
alien convicted of an aggravated felony theft or burglary offense under
section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2018). An
Immigration Judge terminated the removal proceedings on January 15, 2010,
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holding that the respondent established status as a United States citizen. The
DHS filed an appeal, which we sustained on August 31, 2012. We reinstated
the respondent’s removal proceedings, concluding that the Immigration
Judge’s determination regarding the respondent’s citizenship was not
supported by the record.
Following remand, the respondent was convicted on May 26, 2015, of
attempted possession of a dangerous drug for sale and possession of a
narcotic drug for sale, in violation of sections 13-3407 and 13-3408 of the
Arizona Revised Statutes, respectively. Based on this conviction, the DHS
lodged charges of removability against the respondent under (1) section
237(a)(2)(A)(ii) of the Act, as an alien convicted of two or more crimes
involving moral turpitude not arising out of a single scheme of criminal
misconduct, (2) section 237(a)(2)(A)(iii) of the Act, as an alien convicted of
an aggravated felony illicit trafficking offense under section 101(a)(43)(B)
of the Act and of an attempt or a conspiracy to commit such a crime under
sections 101(a)(43)(B) and (U) of the Act, and (3) section 237(a)(2)(B)(i) of
the Act, as an alien convicted of a controlled substance violation. The DHS
also withdrew the aggravated felony theft charge.
On July 12, 2018, an Immigration Judge found that alienage was
established and sustained the lodged charges under sections 101(a)(43)(B)
and 237(a)(2)(A)(iii) of the Act, and under section 237(a)(2)(B)(i). 1 He also
found that the respondent’s drug convictions were for per se particularly
serious crimes that rendered him statutorily ineligible for asylum and
withholding of removal under the Act and the Convention Against Torture.
Additionally, he denied the respondent’s application for deferral of removal
under the Convention Against Torture. The respondent appealed from that
decision.
On January 4, 2019, we dismissed the respondent’s appeal, in part, after
concluding that he had not rebutted the presumption of alienage. However,
we remanded the record for further consideration of the respondent’s
removability in light of Lorenzo v. Sessions, 902 F.3d 930, 933 (9th Cir.
2018). 2 On remand, the Immigration Judge again sustained the charges
1
The Immigration Judge did not make a determination regarding the charge under
section 237(a)(2)(A)(ii) of the Act and the aggravated felony attempt charge under
section 237(a)(2)(A)(iii), as defined in sections 101(a)(43)(B) and (U), and we will not
address them on appeal. In any event, because the respondent does not argue that attempt
under Arizona law is categorically broader than the Federal generic definition of attempt
in section 101(a)(43)(U) of the Act, we consider any issues in this regard to be waived.
See, e.g., Matter of K-S-E-, 27 I&N Dec. 818, 818 n.1 (BIA 2020).
2
After we issued our decision, the United States Court of Appeals for the Ninth Circuit,
in whose jurisdiction this case arises, withdrew its opinion in Lorenzo on denial of
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under sections 237(a)(2)(A)(iii) and (B)(i) of the Act, found that the
respondent was ineligible for relief and protection from removal, and ordered
him removed.
On appeal from this decision, the respondent argues that his conviction
for attempted possession of a dangerous drug for sale under section 13-3407
of the Arizona Revised Statutes is not for either a controlled substance
violation under section 237(a)(2)(B)(i) of the Act or an aggravated felony
illicit trafficking offense under sections 237(a)(2)(A)(iii) and 101(a)(43)(B)
of the Act. 3 Whether the respondent’s State conviction renders him
removable is a question of law, which we review de novo. See 8 C.F.R.
§ 1003.1(d)(3)(ii) (2020).
II. ANALYSIS
A. Removability
Section 237(a)(2)(B)(i) of the Act renders an alien removable if he or she
has been convicted of a “violation of . . . any law or regulation of a State . . .
relating to a controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)).” The term “aggravated felony” at section
237(a)(2)(A)(iii) of the Act encompasses “illicit trafficking in a controlled
substance (as defined in section 102 of the Controlled Substances Act),
including a drug trafficking crime (as defined in section 924(c) of title 18,
United States Code).” Section 101(a)(43)(B) of the Act.
To determine whether the respondent’s conviction under section 13-3407
of the Arizona Revised Statutes renders him removable under either section
237(a)(2)(A)(iii) or (B)(i) of the Act, we employ the “categorical approach”
to determine whether the elements of his State offense match those of the
“generic” Federal definitions set forth in those provisions. See Moncrieffe
v. Holder, 569 U.S. 184, 190 (2013). An “element” of a statute is a “fact[]”
that must be “‘necessarily’ involved” in an offense such that the prosecution
must prove it to sustain a conviction. Id. (citation omitted); see also Mathis
v. United States, 136 S. Ct. 2243, 2248 (2016). To fall within the generic
definitions set forth at either section 237(a)(2)(A)(iii) or (B)(i) of the Act, the
rehearing, Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. 2019), and issued a superseding
unpublished decision in that case, 752 F. App’x 482 (9th Cir. 2019).
3
In light of our disposition, we need not address whether the respondent’s conviction for
possession of a narcotic drug under section 13-3408 renders him removable as charged.
The respondent has also presented the same citizenship arguments he raised before, in
support of which he resubmits evidence that we previously determined to be insufficient to
rebut the presumption of alienage in this case. We see no reason to disturb our prior
conclusion in this regard and will not address the issue of alienage further.
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respondent’s conviction must have necessarily involved, as an element, a
substance listed under the Federal controlled substances schedules. See
Mellouli v. Lynch, 135 S. Ct. 1980, 1991 (2015); Matter of L-G-H-, 26 I&N
Dec. 365, 368 (BIA 2014).
Section 13-3407 proscribes the commission of a number of offenses
involving “a dangerous drug.” Ariz. Rev. Stat. Ann. § 13-3407 (2015). 4 It
is undisputed that “Arizona’s definition of ‘dangerous drug’ is categorically
broader than the federal definition of ‘controlled substance.’” Alvarado
v. Holder, 759 F.3d 1121, 1130 (9th Cir. 2014) (comparing the State’s
definition of a “dangerous drug” in section 13-3401(6) of the Arizona
Revised Statutes with the definition of a “controlled substance” under
Federal law and concluding that section 13-3407 is overbroad relative
to section 237(a)(2)(B)(i) because State law punishes the possession of
substances not controlled by Federal law).
Therefore, the respondent’s removability depends on whether the identity
of the controlled substance underlying a violation of section 13-3407 is an
“element” of that statute. See Matter of Gonzalez Lemus, 27 I&N Dec. 612,
613 (BIA 2019). “If it is, the State statute is divisible,” and a further
“modified categorical” inquiry would be appropriate to identify which
particular substance was involved in the respondent’s offense. 5 Id. “If,
4
Specifically, section 13-3407(A) of the Arizona Revised Statutes provides, in relevant
part:
A person shall not knowingly:
1. Possess or use a dangerous drug.
2. Possess a dangerous drug for sale.
3. Possess equipment or chemicals, or both, for the purpose of manufacturing
a dangerous drug.
4. Manufacture a dangerous drug.
5. Administer a dangerous drug to another person.
6. Obtain or procure the administration of a dangerous drug by fraud, deceit,
misrepresentation or subterfuge.
7. Transport for sale, import into this state or offer to transport for sale or
import into this state, sell, transfer or offer to sell or transfer a dangerous drug.
5
We recognize that the Ninth Circuit, in whose jurisdiction this case arises, utilized a
modified categorical inquiry in Alvarado, 759 F.3d at 1130–33, to discern whether an
alien’s conviction under section 13-3407 involved a federally controlled substance and was
therefore a predicate for removal under section 237(a)(2)(B)(i) of the Act. However, the
Ninth Circuit did not expressly analyze the divisibility of section 13-3407 in that decision,
nor did the court have the benefit of the Supreme Court’s articulation of divisibility in
Mathis. Moreover, the circuit recently certified a similar issue to the Arizona Supreme
Court. See Romero-Millan v. Barr, 958 F.3d 844, 849 (9th Cir. 2020) (asking the court
to resolve whether Arizona statutes proscribing possession of drug paraphernalia and
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instead, the identity of the controlled substance is a [mere] means by which
a crime may be committed, then the statute is not divisible and is overbroad.”
Id.; see also Mathis, 136 S. Ct. at 2248.
The plain language of section 13-3407 is instructive to the extent that it
metes out different punishments, depending on the substance involved in a
violation. See Myers v. Sessions, 904 F.3d 1101, 1107 (9th Cir. 2018)
(“Statutory alternatives that carry different punishments are elements.”
(citing Mathis, 136 S. Ct. at 2256)). More precisely, the respondent’s State
statute of conviction provides harsher sentences for offenses involving
lysergic acid diethylamide, methamphetamine, amphetamine, phencyclidine,
flunitrazepam, gamma hydroxy butrate, and ketamine hydrochloride. See
Ariz. Rev. Stat. Ann. § 13-3407(B)(1), (3), (E)–(G). Since the statute sets
forth “statutory alternatives carry[ing] different punishments,” depending on
whether a violation involved those substances, these alternatives “must be
elements.” Mathis, 136 S. Ct. at 2256; see also Matter of Gonzalez Lemus,
27 I&N Dec. at 614 (holding that a State statute providing “distinct
punishments for drug possession offenses, depending on the identity of the
specific controlled substance involved,” indicated that the identity of the drug
was an element of the statute). We therefore hold that section 13-3407 is
divisible as to the “dangerous drug” involved in a violation of that statute.
We find support for our holding in State case law. See State v. Tavasci,
No. 1 CA-CR 07-0643, 2008 WL 2315690, at *2 (Ariz. Ct. App. June 3,
2008). 6 In that case, the Arizona Court of Appeals upheld a defendant’s
conviction for multiple counts of possession of a dangerous drug under
section 13-3407 where he possessed methamphetamine and other dangerous
drugs—namely, clonazepam and diazepam. This case is significant because,
if the identities of the specific substances underlying the defendant’s offense
possession of a narcotic drug under sections 13-3415 and 13-3408 of the Arizona Revised
Statutes, respectively, are divisible with respect to the identity of the drug involved in each
offense). For these reasons, we do not consider Alvarado to be persuasive authority
regarding the divisibility of section 13-3407, which, in light of Romero-Millan, we view
as an unsettled issue in the Ninth Circuit.
6
We acknowledge that State v. Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656,
at *2 (Ariz. Ct. App. Feb. 16, 2016), and State v. Castorina, No. 1 CA-CR 08-0816, 2010
WL 2450117, at *4 (Ariz. Ct. App. June 17, 2010), suggest that the identity of the
“dangerous drug” involved in a violation of section 13-3407 is not an element of the statute.
However, the United States District Court for the District of Arizona recently reviewed
both cases, found that their reasoning was flawed, and concluded that Arizona case law
fails to provide a “clear answer[] as to the divisibility” of section 13-3407. United States
v. Sanchez-Murillo, No. CR-19-00795-PHX-SPL, 2019 WL 3858606, at *2–3 (D. Ariz.
Aug. 16, 2019) (alteration in original) (citation omitted). Accordingly, we are not
persuaded that Prescott or Castorina “definitively answer[s] whether the dangerous drug
requirement of [section] 13-3407[] is divisible.” Gonzalez-Dominguez v. Sessions, 743
F. App’x 808, 811 (9th Cir. 2018).
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in Tavasci were not alternative “elements” of section 13-3407, the fact that
he possessed several different “dangerous drugs” would have been legally
irrelevant, and the court’s decision to sustain multiple counts of possession
of a dangerous drug would have violated the constitutional prohibition
against double jeopardy.
“The Double Jeopardy Clause, applied to the States through the
Fourteenth Amendment, provides that no person may be tried more than once
‘for the same offence.’” Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018).
To determine whether a person has been either impermissibly tried for the
same offense, or permissibly tried for and convicted of different offenses, we
consider whether each offense “requires proof of a fact which the other does
not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). As noted, an
“element” of an offense is simply a “fact” that must be proved to establish a
conviction. Moncrieffe, 569 U.S. at 190; see also Mathis, 136 S. Ct. at 2248.
So offenses are considered separate and distinct for purposes of double
jeopardy if they involve distinct “elements.” Currier, 138 S. Ct. at 2153.
In light of the prohibition against double jeopardy, we previously found
that where a State has “prosecuted as separate offenses a single act involving
. . . multiple controlled substances,” as Arizona did in Tavasci, “the elements
of proof required as to” an offense involving one drug “are not the same as
those essential” to proving an offense involving a different drug. Matter of
Gonzalez Lemus, 27 I&N Dec. at 614–15 (first and second emphases added)
(internal quotation marks omitted) (citation omitted). Consequently, since
Tavasci indicates that an individual may be subject to multiple convictions
under section 13-3407 for a single act involving multiple “dangerous drugs,”
that case is persuasive evidence that the statute is divisible as to the identity
of the “dangerous drug” underlying a violation.
The United States Court of Appeals for the Ninth Circuit, in whose
jurisdiction this arises, has concluded that the prohibition against double
jeopardy is relevant to discerning whether the identity of a controlled
substance is an element of a State drug statute. See United States
v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc). The issue in
that case was whether the identity of the substance was an “element” of
transportation of a controlled substance under section 11352 of the California
Health and Safety Code. After examining multiple State Supreme Court
cases reflecting that “defendants are routinely subjected to multiple
convictions under a single statute for a single act as it relates to multiple
controlled substances,” the court determined that the “the possession of one
[substance] is not essential to the possession of another [substance].” Id.
at 1040 (alterations in original) (citations omitted). It therefore concluded
that “section 11352 creates separates crimes, each containing ‘an element not
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contained in the other,’” and thus “is divisible with regard to its controlled
substance requirement.” Id. at 1040–41 (citations omitted). 7
Even if the plain language of section 13-3407 and Arizona case law do
not “provide clear answers” as to the statute’s divisibility, we may “peek” at
the respondent’s record of conviction “for ‘the sole and limited purpose of
determining whether [the dangerous drugs listed in section 13-3407 are]
element[s] of the offense.’” Mathis, 136 S. Ct. at 2256–57 (second alteration
in original) (citation omitted). The respondent’s indictment charged him
with violating section 13-3407 for “knowingly . . . possess[ing] for sale
Methamphetamine, a dangerous drug.” 8 Because this charging document
“referenc[es] one alternative [dangerous drug] to the exclusion of all others,”
7
In a more recent unpublished decision, the Ninth Circuit stated that if “a court gains a
separate conviction for each type of drug possessed, this may show that proof of multiple
drug types is sufficient to sustain multiple convictions, but it does not resolve whether it is
necessary for a jury to agree on a single drug type to convict.” Madrid-Farfan v. Sessions,
729 F. App’x 621, 622 (9th Cir. 2018). However, based on the Ninth Circuit’s holding in
its en banc precedential decision in Martinez-Lopez, we conclude that double jeopardy
considerations are relevant to our analysis.
The Third, Sixth, Eighth, and Eleventh Circuits have taken the same approach as
Martinez-Lopez. See Gordon v. U.S. Att’y Gen., 962 F.3d 1344, 1349 (11th Cir. 2020)
(concluding that the identity of the substance possessed is an element of the crime of
possession with intent to distribute under Georgia law because the State Supreme Court
has held that the State “could charge and convict a defendant in separate counts for
simultaneous possession of three different . . . controlled substances”); Guillen v. U.S. Att’y
Gen., 910 F.3d 1174, 1182 (11th Cir. 2018) (concluding same with regard to a Florida
possession statute based on a State Supreme Court decision holding that a defendant could
be convicted of possessing two different drugs under the statute since “possession of [these]
two separate drug substances . . . constitutes . . . separate violation[s] of law” (citation
omitted)); Martinez v. Sessions, 893 F.3d 1067, 1071 (8th Cir. 2018) (holding that Missouri
case law demonstrates that “the identity of a controlled substance is an element” of
possessing a controlled substance because State courts have held that “two convictions
[under the State possession statute] involving different drugs . . . did not violate double
jeopardy”), cert. denied sub nom. Bueno-Muela v. Whitaker, 139 S. Ct. 1198 (2019);
United States v. Henderson, 841 F.3d 623, 629 (3d Cir. 2016) (reaching the same
conclusion where Pennsylvania case law upheld consecutive sentences for delivery of two
different controlled substances since “[e]ach offense includes an element distinctive of the
other, i.e., the particular controlled substance” (quoting Commonwealth v. Swavely, 554
A.2d 946, 949 (Pa. Super. Ct. 1989))); see also Raja v. Sessions, 900 F.3d 823, 829 (6th
Cir. 2018) (agreeing with the Third Circuit in Henderson because “Swavely upheld
consecutive sentences for the delivery of two different controlled substances in a single
vial under the . . . Double Jeopardy Clause”). But see Harbin v. Sessions, 860 F.3d 58,
66 (2d Cir. 2017) (“[T]he values of fair notice and avoidance of double jeopardy often
demand that the government specify accusations in ways unrelated to a crime’s elements.”).
8
We may take administrative notice of official documents, including “the contents of [an
alien’s] record of conviction.” Matter of Tavdidishvili, 27 I&N Dec. 142, 142 n.1 (BIA
2017) (citing 8 C.F.R. § 1003.1(d)(3)(iv)).
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we conclude that the alternative “dangerous drugs” listed in section 13-3407
are alternative “elements, each one of which goes toward a separate crime.”
Id. at 2257. We are therefore permitted to examine the respondent’s record
of conviction under a modified categorical analysis. See Matter of Gonzalez
Lemus, 27 I&N Dec. at 614.
The indictment in this case reflects that the respondent was charged with
violating section 13-3407 of the Arizona Revised Statutes because he
possessed for sale methamphetamine, a federally controlled substance under
21 U.S.C. § 812, schedule III(a)(3) (2018). His conviction therefore renders
him removable as charged under section 237(a)(2)(B)(i) of the Act. And
since his conviction necessarily involved “‘the unlawful trading or dealing’
in a controlled substance as defined by Federal law,” it falls within the
generic definition of an aggravated felony illicit trafficking offense under
sections 237(a)(2)(A)(iii) and 101(a)(43)(B) of the Act. Matter of L-G-H-,
26 I&N Dec. at 368 (citation omitted).
We therefore conclude that the respondent’s conviction for attempted
possession of a dangerous drug under section 13-3407 of the Arizona
Revised Statutes is for an aggravated felony and a controlled substance
violation under sections 237(a)(2)(A)(iii) and (B)(i) of the Act, respectively.
In light of this disposition, we need not address the other charges of
removability in this case.
B. Relief and Protection From Removal
The Immigration Judge concluded that the respondent was statutorily
ineligible for asylum and for withholding of removal under the Act
and the Convention Against Torture because he was convicted of an
aggravated felony for which the aggregate term of imprisonment exceeded
5 years. See sections 208(b)(2)(A)(ii), (B)(i), 241(b)(3)(B)(ii) of the Act,
8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i), 1231(b)(3)(B)(ii) (2018); 8 C.F.R.
§ 1208.16(d)(2) (2020). The respondent was sentenced to 7½ years in prison
for his violation of section 13-3407, and this sentence ran concurrently with
his sentence for possession of a narcotic drug under section 13-3408 of the
Arizona Revised Statutes. See Matter of Aldabesheh, 22 I&N Dec. 983, 989
(BIA 1999) (en banc) (holding that “where an alien has received concurrent
sentences to imprisonment, the alien’s ‘aggregate term of imprisonment’
pursuant to section 241(b)(3) of the Act is equal to the length of the alien’s
longest concurrent sentence”).
Based on the foregoing analysis, we will uphold the Immigration Judge’s
conclusion that the respondent has been convicted of a per se particularly
serious crime that bars him from applying for asylum and withholding of
removal. The respondent has not meaningfully challenged the Immigration
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Judge’s decision to deny his application for deferral of removal under the
Convention Against Torture, so that matter is not before us. See Matter of
K-S-E-, 27 I&N Dec. at 818 n.1. Accordingly, the respondent’s appeal will
be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).
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