On July 23, 2020, the Board of Immigration Appeals (BIA or Board), in what appears to be an attempt to limit the use of the categorical approach or make it easier to overcome that rule’s restrictions, dismissed Respondent’s appeal of a decision by the Immigration Judge (IJ) denying his applications for asylum, withholding, and CAT relief in an opinion by Appellate Immigration Judge Blair O’Connor. Respondent is a lawful permanent resident who was convicted in Arizona of burglary and placed into removal proceedings by DHS, charged under INA §237(a)(2)(A)(iii) as one convicted of an aggravated felony theft or burglary offense per INA §101(a)(43)(G).
Initially, the IJ terminated proceedings, finding that the Respondent was a U.S. citizen; the DHS appeal was sustained as the BIA disagreed, and proceedings were reinstated. Thereafter, he was convicted 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. In turn, DHS charged Respondent under INA §237(a)(2)(A)(ii) as one convicted of two or more crimes of moral turpitude not arising out of a single scheme of criminal misconduct; §237(a)(2)(A)(iii) as one convicted of an aggravated felony illicit trafficking offense per §101(a)(43)(B) and of an attempt of a conspiracy to commit such a crime per §101(a)(43)(B) and (U); and, §237(a)(2)(B)(i) as one convicted of a controlled substance violation. DHS withdrew the aggravated felony theft charge.
The IJ then found Respondent removable under §§101(a)(43)(B), 237(a)(2)(A)(iii), and 237(a)(B)(i), concluding that his drug convictions were per se particularly serious crimes making him statutorily ineligible for asylum, withholding, and CAT relief; he also denied Respondent’s deferral of removal request under CAT. Respondent appealed and the Board dismissed in part, finding that he had not rebutted the presumption of alienage. However, the record was remanded for further consideration of removability in light of Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018). On remand, the IJ again sustained the 237 (a)(2)(A)(iii) and (B)(i) charges, finding that Respondent was ineligible for relief and protection from removal and ordered him removed. This appeal followed, Respondent contending that his Section 13-3407 conviction is neither a controlled substance violation per 237(a)(2)(B)(i) nor an aggravated felony illicit trafficking offense per §237(a)(2)(A)(iii) and 101(a)(43)(B).
In beginning its analysis, the BIA stated that to determine if Respondent’s 13-3407 conviction makes him removable under either 237(a)(2)(A)(iii) or (B)(i), it must 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.” The opinion further noted that 13-3407 lists a number of offenses involving a “dangerous drug”, a term which is “categorically broader” than the federal definition of a “controlled substance”, citing to Alvarado v. Holder, 759 F, 3d 1121 (9th Cir. 2014), which held that 13-3407 is overbroad relative to 237 (a)(2)(B)(i) because state law punishes the possession of substances not controlled by federal law.
The Board next stated that the plain language of 13-3407 is “instructive” in that it “metes out different punishments depending on the substance involved” i.e., Respondent’s Arizona statute of conviction provides harsher sentences for offenses involving certain drugs. Thus, held the decision, the law is divisible as to the “dangerous drug” involved in a violation. Further state case law indicates that one may be subject to multiple convictions under 13-3407 for a single act involving multiple “dangerous drugs” – persuasive evidence that the statute “is divisible as to the identity of the ‘dangerous drug’ underlying a violation.” And, concluded the Board, even if the plain language of the statute and the state case law does not provide clear answers as to divisibility, it can “peek” at Respondent’s record of conviction solely to determine if the drugs listed in the law are “elements of the offense.”
The BIA then held that the “dangerous drugs” listed in 13-3407 are alternative “elements”, each going towards a separate crime, permitting the “modified categorical” analysis of Respondent’s conviction record. As a result of this “peek” at the indictment, the Board learned that he was charged with possessing methamphetamine for sale; because this is a federally controlled substance, the conviction renders Respondent removable as charged under §237(a)(2)(B)(i). Since the violation necessarily involved “unlawful trading or dealing” in a federally controlled drug, it falls within the generic definition of “an aggravated felony illicit trafficking offense” under 237(a)(2)(A)(iii) and 101(a)(43)(B). Therefore, Respondent’s conviction for attempted possession of a dangerous drug under 13-3407 is both an aggravated felony and a controlled substance violation under these sections the INA.
As to the applications for relief, the Board upheld the IJ’s conclusion that Respondent had been convicted of a per se particularly serious crime, barring him from asylum and withholding. The appeal was thus dismissed. Matter of P-B-B-, 28 I&N Dec. 43 (BIA 2020).
