Alejos-Perez v. Garland, 991 F.3d 642

Mario Alejos-Perez, a Mexican national and lawful permanent resident, was convicted in Texas of three offenses: 2009 (attempted taking of an officer’s weapon), 2013 (theft), and 2018 (possession of MMB‑Fubinaca).
The government sought removal: it asserted the 2009 and 2013 convictions involved crimes of moral turpitude and the 2018 conviction related to a federally controlled substance under 8 U.S.C. § 1227(a)(2)(B)(i).
The IJ found all three convictions deportable; the BIA affirmed removal based on the 2018 drug conviction and expressly declined to reach the moral‑turpitude issues for 2009 and 2013.
The key legal question for the Fifth Circuit was whether Texas Health & Safety Code Penalty Group 2‑A (the statutory list that includes MMB‑Fubinaca by structural class) is divisible such that the modified‑categorical approach could be used to tie Alejos‑Perez’s conviction to a federally listed drug.
The court concluded the government failed to prove Penalty Group 2‑A is divisible (text, state caselaw, and record were inconclusive), so it applied the categorical approach and found the Texas provision broader than the federal controlled‑substances schedules.
The petition for review was granted; the BIA’s order was reversed and the case remanded for the BIA to decide (1) whether Alejos‑Perez showed a realistic probability Texas would apply the statute to non‑federal drugs and (2) whether the 2009/2013 convictions independently support removal.

Issue	Alejos‑Perez's Argument	Government's Argument	Held
Divisibility of Penalty Group 2‑A (whether statutory drug alternatives are elements or means)	Penalty Group 2‑A is indivisible; alternatives are means, so categorical approach applies	Penalty Group 2‑A is divisible; each drug is a separate element permitting the modified‑categorical approach	Divisibility is indeterminate on the record; government failed to show divisibility, so apply the categorical approach
Whether the 2018 conviction relates to a federally controlled substance	Not removable: Texas statute covers non‑federally listed substances (categorical mismatch)	Removable: Alejos‑Perez possessed a federally controlled compound (MMB‑Fubinaca); if statute is divisible, modified‑categorical ties conviction to federal drug	Statute is broader than federal list; no categorical match. Court remands to BIA to address whether there is a realistic probability Texas would apply the statute to non‑federal drugs
Remedy and other convictions (2009 and 2013)	Seek termination of proceedings or relief from removal	Maintain removal based on other convictions if 2018 conviction suffices	Court declines termination; remands for BIA to address the realistic‑probability question and to consider independently whether 2009/2013 convictions render him removable

Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (state offense removable only if its elements relate to a federally controlled substance)
Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes divisible vs. indivisible statutes for element/means analysis)
Vazquez v. Sessions, 885 F.3d 862 (5th Cir. 2018) (statutory determination whether state law "relates to" a federal schedule is a pure question of law)
United States v. Castillo‑Rivera, 853 F.3d 218 (5th Cir. 2017) (realistic‑probability test for categorical approach requires actual state‑court applications)
Vetcher v. Barr, 953 F.3d 361 (5th Cir. 2020) (categorical mismatch precludes removability absent realistic‑probability showing)
Descamps v. United States, 570 U.S. 254 (2013) (discusses categorical approach when statutes create multiple crimes)