BIA Holds That §58-37-8(2)(a)(i) Of The Utah Code, Which Criminalizes Possession Or Use Of A Controlled Substance, Is Divisible With Respect To The Identity Of The Specific “Controlled Substance” Involved In A Violation Of That Statute.
On January 22, 2021, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of a decision by the Immigration Judge (IJ) to terminate removal proceedings, reinstated proceedings, and remanded the record to the IJ. In its recitation of the case’s factual and procedural history, the BIA noted that Respondent is a lawful permanent resident (LPR) who was convicted of possession of a controlled substance under §58-37-8(2)(a)(i) of the Utah Code and received a suspended sentence of 365 days in prison. As a result, he was placed into proceedings by DHS, charged with removability under INA §237(a)(2)(B)(i) as one convicted of violating a law related to a controlled substance. After deciding that DHS had not established that the Utah statute was a predicate offense for removal, the IJ terminated removal proceedings. On appeal, the Government contended that Respondent’s conviction is actually for violating a law relating to a controlled substance. This question of law, the Board stated, is reviewed de novo.
In beginning its analysis, the BIA explained that one becomes removable when convicted of violating any law or regulation relating to a “controlled substance” as that term is defined by the Federal Controlled Substances Act (CSA) and to determine whether this offense renders Respondent removable under 237(a)(2)(B)(i), it employed the “categorical approach” to determine whether the elements of the Utah statute match those of the “generic” Federal definition found in the INA. As such, Respondent’s conviction “must-have necessarily involved, as an element, a substance listed under the CSA.” If the Utah law is “categorical overbroad,” the Board must then consider whether it is divisible, i.e., whether it sets out one or more elements of the offense in the alternative; if the statute is divisible, the BIA may employ a “modified categorical approach” which permits examination of Respondent’s record of conviction to determine what crime – with what elements – he was convicted of.
The decision next noted that §58-37-8(2)(b)(i) provides that anyone convicted under subsection (2)(a)(i) with respect to marijuana, where the amount is 100 pounds or more, is guilty of a 2nd-degree felony, but if convicted under (2)(b)(ii) of that subsection regarding a substance classified in Schedule I or II, or a controlled substance analog, is guilty of a class A misdemeanor on a first or second conviction, but on a third or subsequent conviction, is guilty of a 3rd-degree felony. Next, the BIA explained that, because Respondent was convicted of a class A misdemeanor, the IJ concluded he had been found guilty of possessing a schedule I or II controlled substance or analog under 58-37-8(2)(b)(ii). The opinion then stated that Respondent’s conviction for a class A misdemeanor under §§58-37-8(2)(a)(i) and (b)(ii) “does not categorically fit within the definition of a controlled substance violation” under INA §237(a)(2)(B)(i) because, at all relevant times, “schedules I and II of the Utah controlled substances schedules criminalized the possession of substances that are not included in the CSA.” Further, concluded the Board, the Utah law is divisible in part, because §§58-37-8(2)(b) and (d), the “relevant penalty provisions of the statute,” deliver different punishments for violations of §58-37-8(2)(a)(i) “depending on the circumstances underlying a particular violation.”
Because the parties disagreed as to whether the Utah law is divisible with respect to the identity of the particular substance Respondent was convicted of possessing, the decision found that the issue here was “whether the identity of the specific controlled substance involved in a violation of that provision is an ‘element’ of that offense or merely an alternative ‘means’ of committing the crime.” The BIA explained that the IJ had concluded (and Respondent contended) that to establish a class A misdemeanor conviction under 58-37-8(2)(a)(i) and (b)(ii), the prosecution must prove only, and a jury need only find, that one possessed a controlled substance under Schedule I or II or a “controlled substance analog” under these schedules – regardless of the specific substance possessed. In this sense, the IJ found that “these alternative schedules are alternative ‘means’ of satisfying these elements.” As such, concluded the opinion, the IJ had found the statute overbroad and, because it was indivisible with respect to the identity of the specific controlled substance, Respondent’s conviction did not render him removable. But, after reviewing the language of the law, relevant Utah jury instructions, and case law, as well as Respondent’s record of conviction, the Board disagreed, concluding that the substance’s identity is an “element” of the statute, rather than a mere “means” of violating it.
First, parsing the “plain language” of the law, the decision concluded that 58-37-8 reflects that penalties for violations are not simply based on “the schedule of the controlled substance involved,” but that the statute requires the state to prove, and a jury to find, a defendant’s specific criminal history and the identity and amount of the substance in question to determine the type of conviction (2nd or 3rd-degree felony, class A or B misdemeanor, etc.). The BIA, therefore, concluded that “an element of section 58-37-8 is the identity of the specific controlled substance involved in a violation of that statute.” Next, the opinion relied on the relevant jury instructions to determine that they “require a jury to find the specific substance underlying a violation of section 58-37-8(2)(a)(i) beyond a reasonable doubt”, which materially differed from other (Colorado) instructions cited by Respondent.
The Board then admitted that it could find no Utah case determining whether the identity of a particular substance is an element or a means but found it “significant” that the state has prosecuted as separate offenses a single act involving the possession of multiple controlled substances. This indicated that the “elements” of proof for a violation involving one drug differ from those essential to proving an offense involving a different drug and the decision noted that Respondent had not explained, given the prohibition against double jeopardy, how one could be convicted of multiple counts of possession of multiple substances, “if the identity of the specific controlled substance possessed was simply an alternative means of committing the offense, rather than an element of section 58-37-8(2)(a)(i).”
Finally, under the modified categorical approach, the BIA “peeked” at Respondent’s record of conviction for the “sole and limited purpose” of finding out if the specific substance is an element of the offense. He had been charged with possessing or using methamphetamine, “a Schedule II controlled substance.” The fact that the indictment referenced this drug “to the exclusion of all others”, supported the Board’s conclusion that the substance’s identity is an “element” of a statute, i.e., the law is divisible with respect to the identity of the drug. The IJ had therefore erred by terminating the proceedings, the appeal was sustained, proceedings reinstated and the record remanded. Matter of Dikhtyar, 28 I&N Dec. 214 (BIA 2021).