On September 25, 2019, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a lawful permanent resident convicted of possession of methamphetamine and, shortly thereafter, of marijuana possession in violation of Iowa Code section 124.401(5) and was therefore found removable as one convicted of a controlled substance violation under INA §237(a)(2)(B)(i). The only issue on appeal, stated the BIA, was whether a section 124.401(5) conviction is a controlled substance violation under the INA, as respondent made no application for relief from removal.
The Board’s analysis initially noted that the Iowa statute includes at least one drug not found on the Federal controlled substance schedules; removability thus depended “on whether the identity of the controlled substance is an ‘element’ of section 124.401(5)”. If so, the state statute is divisible. If not, and the identity of the substance is a “brute fact”, or a means by which a crime may be committed, the statute is not divisible and is overbroad.
The Immigration Judge (IJ) found the identity of the substance to be an element of 124.401(5) and concluded the statute is divisible; this allowed for the IJ’s use of the modified categorical approach to determine which drug respondent has been convicted of possessing. Respondent challenged this determination on appeal. Upon “de novo review of this legal question”, the BIA agreed with the IJ that the identity of the substance was an element, not a means.
The Board noted that the Eight Circuit Court of Appeals, in whose jurisdiction this case arises, has stated that different penalties for different statutory alternatives indicate that the alternatives are elements. Furthermore, Iowa prosecutes as separate offenses a single act involving the distribution and/or delivery of multiple controlled substances. Additionally, stated the decision, Iowa case law established that “juries have been instructed that the statute is required to prove the identity of a controlled substance during the course of criminal proceedings,” disputing respondent’s contention that the Iowa Model Criminal Jury Instruction shows that the State need not prove the identity of a drug in a criminal matter. Agreeing with the IJ that section 124.401(5) is divisible (regarding marijuana, methamphetamine or amphetamine) as to the specific substance involved, the BIA upheld the application of the modified categorical approach to determine the drug was methamphetamine, a controlled substance under Federal law. As such, respondent was found removable under §237(a)(2)(B)(i) as one convicted of a controlled substance crime and the appeal was dismissed. Matter of Gonzalez Lemus, 27 I&N Dec. 612 (BIA 2019).