Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
Department of Justice
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Greer, Anne J.
Mullane, Hugh G.
Userteam: Docket
Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
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U.S. Department of Justice
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,
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Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Pauley l Roger
Greer, Anne J.
Mullane 1 Hugh G.
Userteam:
Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
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U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
APPEAL
CHARGE:
APPLICATION: Termination
The respondent appeals from an Immigration Judge's decision dated February 17, 2017, in
which the above-captioned charge of removal was sustained based on his conviction under section
13-3415 of the Arizona Revised Statutes. The appeal will be sustained and the proceedings will
be terminated.
The respondent is a native and citizen of Guatemala and a lawful permanent resident of the
United States. He was placed into these removal proceedings via service of a Notice to Appear
("NTA ") charging him with being removable under section 237(a)(2)(B)(i) of the Immigration and
Nationality Act, 8 U.S.C. 1227(a)(2)(B)(i), i.e., as an alien convicted of violating a law of any
State, the United States, or a foreign country relating to a controlled substance (Exh. 1). The
Department of Homeland Security bears the burden to establish, by clear and convincing evidence,
that the respondent is removable as charged. See section 240(c)(3)(A) of the Act.
At issue, therefore, is whether the respondent's 2016 conviction for possession of drug
paraphernalia in violation of section 13-3415(A) 1 of the Arizona Revised Statutes (hereafter
1
Although the Immigration Judge's decision references a number of other Arizona statutes at
issue, the main question involves whether Arizona's offense for possession of drug paraphernalia
is a removable offense under section 237(a)(2)(B)(i) of the Act. See I.J. at 1 and Exh.2.
Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
A078 686'322
"section 13-341S(A) ") is "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))."
It is unlawful for any person to use, or to possess with intent to use, drug
Ariz. Rev. Stat. 13-3415(A). For purposes of this section, the term "drug " is defined to mean
"any narcotic drug,dangerous drug,marijuana or peyote." See Ariz.Rev. Stat. 13-3415(F)(l).
In turn,the terms "narcotic drug " and "dangerous drug " are defined by reference to long lists of
controlled substances. See Ariz.Rev. Stat. 13-3401(6),(20).
According to the Supreme Court, the requirements of the Act's controlled substance
removability grounds are "satisfied when the elements that make up the state crime of conviction
relate to afederally controlled substance." Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015)
(emphasis added). Thus,a conviction for possession of drug paraphernalia supports a finding of
removability under section 237(a)(2)(B)(i) if (and only if) an "element " of the drug paraphernalia
statute is connected to a substance listed in the Federal controlled substance schedules. Id. at 1991.
There is no dispute that section 13-3415(A) is broader than section 237(a)(2)(B)(i) of the Act
because Arizona's definitions of "narcotic drug " and "dangerous drug " are categorically broader
than the federal definition of a "controlled substance." See Alvarado v. Holder, 759 F.3d 1121,
1130 (9th Cir. 2014). Thus, the respondent's conviction cannot render him removable under
section 13-3415(A) unless the OHS demonstrates that the statute is "divisible," and that
consideration of the respondent's conviction record would indicate that the "drug " that he
possessed is a federally-controlled substance. In removal proceedings,we evaluate the divisibility
of criminal statutes by employing the standards set forth in Mathis v. United States, 136 S. Ct.
2243 (2016), and Descamps v. United States, 133 S. Ct. 2276 (2013). See Matter of Chairez,
27 l&N Dec.21 (BIA 2017).
By its terms, section 13-341S(A) requires proof beyond a reasonable doubt that the accused
possessed paraphernalia with the intent to use it as a means of "plant[ing],propagat[ing],[etc.] ....
a drug." Under Mathis and Descamps, the divisibility of section 13-3415(A) thus depends upon
whether the identity of the particular "drug " with which the paraphernalia is to be used is an
"element " of the offense-Le.,a fact that must be proven to the jury,unanimously and beyond a
reasonable doubt,in order to convict-or merely a "brute fact " about which the jury can disagree
while still rendering a guilty verdict. If the former-if, that is, all members of an Arizona jury
would need to agree that the accused intended to use the paraphernalia to "plant,propagate," etc.,
one specific drug to the exclusion of all others before rendering a guilty verdict-then section
13-3415(A) is divisible and the factfinder can undertake a modified categorical inquiry. But if the
latter-if,that is,the jurors could render a guilty verdict even if some of them thought the accused
2
Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
A078 686' 322
intended to use the paraphernalia to ingest cocaine while others thought the accused intended to
use it to ingest heroin)-then section 13-34 l 5(A) is indivisible and a modified categorical inquiry
is impermissible.
On its face, the language of section 13-3415(A) does not specify whether the identity of the
"drug" with which the paraphernalia is to be used is an "element" of the offense or merely a "brute
Nevertheless,these jury instructions are not dispositive to our inquiry for two reasons. First,
the jury instructions are persuasive rather than binding authority. See State v. Logan, 30 P.3d 631,
633 (Ariz. 2001) (since 1996,Arizona jury instructions are created by bar association and do not
bear approval of Arizona Supreme Court). Second, Arizona case law is not consistent with a
conclusion that a jury must unanimously agree on which precise drug supports a conviction under
at least some Arizona drug-related statutes. In State v. Lodge, No. 2 CA-CR 2014-01 10,2015 WL
164070, at *4-*6 (Ariz. Ct. App. Jan. 14, 2015) (unpublished), the Arizona Court of Appeals
upheld a section 13-3415(A) conviction despite the fact that the jury instruction did not require a
connection between the paraphernalia and a specific drug,even though the evidence offered at trial
was consistent with the defendant's use of some paraphernalia associated with methamphetamine
and other paraphernalia associated with marijuana. In a similar context, in State v. Prescott, No.
1 CA-CR 15-0188,2016 WL 611656,at *2 (Ariz. Ct. App. Feb. 16,2016) (unpublished),the court
held that possession or sale of a dangerous drug under Ariz. Rev. Stat. 13-3407(A) is "one crime,
regardless of whether the drug possessed or sold is methamphetamine, MOMA, or any other
substance the statutes define as a dangerous drug." 2 The court specifically stated that a "defendant
is not entitled to a unanimous verdict on the precise manner in which the [offense] was committed."
Id. at *2.
Although we note that, as the OHS argues, there are cases involving a prosecution under
section 13-3415(A) in which the jury was instructed to connect the paraphernalia to a particular
drug,we do not find that the overall state of the law is one that definitively reflects that the relevant
statute is divisible. See, e.g., State v. Kelly, No. 1 CA-CR 14-0671, 2015 WL 4538447, at *3
(Ariz. Ct. App. July 28,2015). We further disagree that we should look at the respondent's plea
agreement-in which he states that he possessed a baggie intended for cocaine-in order to discern
whether the identity of the drug is an element of the Arizona statute at issue. While it is true that
2
These opinions are consistent with the Ninth Circuit's view that the identity of a controlled
substance is not an element of other Arizona drug offenses. See Vera-Valdevinos v. Lynch, 649 F.
App'x 597,598 & n.l (9th Cir. 2016) (holding that Ariz. Rev. Stat. 13-3408-which prohibits
possessing,selling,manufacturing,administering,procuring,transporting,importing,and offering
to transport a "narcotic drug"-is overbroad and indivisible vis-a-vis section 101(a)(43)(B) of the
Act because an Arizona jury need not make any finding of fact with respect to the identity of the
particular drug at issue).
3
Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
A078 686'322
in Mathis v. United States, supra, taking a "peek" at conviction documents was discussed with
approval for certain "limited purpose[s]," here,the inclusion of a certain drug in the plea agreement
does not assist us in determining whether the identity of the drug is an element of the offense
defined by section 13-3415(A). See Mathis v. United States, supra, at 2256; Matter of Chairez,
supra, at 24 (if an admission in a plea agreement is not tethered to any fact charged in the amended
information,that admission does not establish the divisibility of a statute).
For the foregoing reasons,we agree with the respondent that his conviction for possession of
drug paraphernalia under section 13-341S(A) is overbroad and indivisible relative to the definition
of a controlled substance offense and thus cannot serve as a predicate for his removal under section
237(a)(2)(B)(i) of the Act-the sole charge of removability. Because the DHS cannot meet its
burden of proof with regard to this charge, we will terminate these removal proceedings. See
Matter ofSanchez-Herbert, 26 I&N Dec. 43,44 (BIA 2012). Accordingly, the following orders
will be entered.
4
Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
ELOY, ARIZONA
CHARGE: Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA " or
"the Act ") as an alien who has committed an offense "relating to " a
controlled substance.
2
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LOPEZ-CLEMENTE, Ernesto Rodrigo
A078-686-322
marij\lana] . INA 237(a)(2)(B)(i). Mellouli, 1,35 S. Ct. at 1986 -1987 (the categorical approach
"has a long pedigree in our Nation's immigration law); Moncrieffe v. Holder, 133 S. Ct. 1678,
1684 (2013). The court does so by "compar[ing] the elements of the statute of conviction with a
federal definition of the crime to determine whether conduct proscribed by the statute is broader
than the generic federal definition. " Rodriguez-Castellon v. Holder, 133 F.3d 847, 853 (9th Cir.
2013). "An offense's "elements " are those facts about the crime which "[t]he Sixth Amendment
1
The court acknowledges that the term used by the 9th Circuit Court of Appeals in Leal was "realistic possibility",
not "probability," but this court uses the latter term as more consistent with the jurisprudence of both 9th Circuit and
the Supreme Court. See, e.g.; Linares-Gonzalez v. lynch, 20 1 6 WL 1 084735 (9th Cir. 201 6); Ramirez v. Lynch, 8 1 0
F.3d I 127 (9th Cir. 20 1 6); Medina-Lara v. Holder, 11 1 F.3d 1 1 06 (9th Cir. 20 14); Nunez v. Holder, 594 F.3d 1 1 24
(9th Cir. 20 1 0); Moncrieffe v. Holder, 1 33 S.Ct. 1 678 (20 1 3); and Gonzales v. Duenas-Alvarez, 549 U.S. 1 83, 1 93
m
3
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LPEZ-CLEMENTE, Emo Rodrigo
A078-686.. 322
established "based on factual evidence of actual convictions, on unpublished and nonprecedential
opinions, on statutory language and the logic of published opinions, or some combination
thereof." Leal v. Holder, 111 F.3d 1 1 40 (9th Cir. 201 4); Nicanor-Romero v.Mukasey, 523 F.3d
992, I 005 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos v. Holder, 558
F.3d 903, 91 1 (9th Cir. 2009) (en bane)." If the "swath " of conduct proscribed by an indivisible
statute is broader than the elements of the generic definition, the conviction is categorically not a
4
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LOPEZ-CLEMENTE, Ernesto Rodngo
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A078-686322
schedules of controlled substances published pursuant to the Controlled Substances Act in that
the Arizona list includes two additional drugs - benzylfentanyl and thenylfentanyl); Alvarado v.
Holder, 759 F.3d 1121, 1130 (9th Cir. 2014) (Arizona's definition of "dangerous drug " is
categorically broader than the federal definition of "controlled substance. ") Consequently, the
Arizona statute is overbroad and Respondent's conviction is not categorically relating to a
Federal controlled substance. Madrigal-Barcenas v. Lynch, 797 F.3d 643, 645 (9th Cir. 2015)
5
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LOPEZ-CLEMENTE, Ernesto Rodrigo
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A078-686.,322
was "q dangerous drug," and that it need not be proven which specific "dangerous drug" was
involved. However, Prescott is unpublished and not controlling.
Inasmuch as the Arizona statute indivisibly proscribes conduct relating to a "dangerous
drug " rather than a specific drug as an element of the offense, the statute is broader than the
elements of the generic definition and the conviction is not categorically an offense relating to a
controlled substance.
6
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LOPEZ-CLEMENTE, Ernesto Rodrigo
A078-686.:322
. Respondent was admitted to the United States as an LPR on November 20, 20 1 1 , and
placed into proceedings on November 1 0, 2 0 1 6. [Ex. 1 .) Respondent has failed to reside in the
United States for a period of at least seven (7) years "immediately preceding the ate of initiation
of proceedings to remove the alien from the United States." See INA 2 1 2(h)(2). Accordingly,
Respondent is also ineligible to re-adjust his status via an INA 2 l 2(h) waiver. See generally
Negrete-Ramirez v. Holder, 74 1 F.3d 1 047, 1 054 (9th Cir. 20 1 4) ("[O]nly noncitizens who
APPEAL RIGHTS: Both parties have the righ o appeal the decision of the Immigration Judge
in this case. Any appeal is due in the hands o the Board of Immigration Appeals on or before
thirty calendar days from the date of service of this decision.
CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL (M) . PERSONAL SERV}-\ E (P)
TO: ( ) AL N j ) ALIEN c/o Custodial Officer ()ALIEN'S T/REP DHS lf1
DATE: d-,
!
L\ 7. I l
l BY COURT STAFF: - - ----,J.----
Attachments: ( ) EOIR-33 ( ) EOIR-28 ( ) Legal Services t ( ) Other