Jonathan Aguirre-Zuniga v. Merrick B. Garland, 37 F.4th 446

Jonathan Aguirre-Zuniga, a lawful permanent resident since 2007, pled guilty in Indiana (2018) to delivery of methamphetamine under Ind. Code § 35-48-4-1.1.
DHS initiated removal proceedings, asserting his conviction was an "aggravated felony" under the INA because it involved illicit trafficking in a controlled substance.
At issue was whether the Indiana statute criminalized a broader range of conduct than the federal Controlled Substances Act because Indiana’s Schedule II then listed "isomers" of methamphetamine (interpreted to include optical and positional isomers) while federal law defined "isomer" for methamphetamine as only the optical isomer.
The Immigration Judge and the BIA found Aguirre-Zuniga removable; the BIA applied the "realistic probability" test and concluded petitioner failed to show the state had actually prosecuted nonfederal conduct.
The Seventh Circuit reviewed de novo, applied the categorical (conduct-based) approach, and considered whether the Indiana statute was facially overbroad relative to the federal definition of methamphetamine.
The court held the Indiana statute was facially overbroad at the time of conviction (because Indiana’s use of "isomer" was broader than the federal definition), so the conviction does not qualify as an aggravated felony; the petition was granted and the BIA decision vacated.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Indiana methamphetamine statute is categorically broader than the federal definition because it covers non-optical isomers	Aguirre‑Zuniga: Indiana’s reference to "isomers" included positional (and not only optical) isomers, making the statute broader than the federal law	DHS: The 2006 statute omitted schedule references and is silent on isomers; thus it does not reach nonfederal isomers and is not broader	Held: Indiana’s generic use of "isomer" (as read with Schedule II) was broader than federal law at the time, so the statute was facially overbroad and cannot trigger aggravated‑felony removal
Whether the "realistic probability" test is required when a state statute is facially overbroad	Aguirre‑Zuniga: Categorical approach controls and if statute is overbroad the inquiry ends; no realistic probability showing is required	DHS: Even if facially overbroad, petitioner must show a realistic probability the state would prosecute nonfederal conduct	Held: Court reaffirmed categorical-first rule; realistic probability is a backstop only if statute’s reach is ambiguous—here categorical analysis ended the inquiry

Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (Supreme Court) (describing the categorical approach)
Shular v. United States, 140 S. Ct. 779 (Supreme Court) (compare statutory elements to federal analog)
Mellouli v. Lynch, 575 U.S. 798 (Supreme Court) (determine minimum conduct at time of conviction)
Moncrieffe v. Holder, 569 U.S. 184 (Supreme Court) (state conviction counts only if it proscribes conduct punishable as a federal felony)
United States v. De La Torre, 940 F.3d 938 (7th Cir.) (Indiana methamphetamine definition held broader than federal)
United States v. Ruth, 966 F.3d 642 (7th Cir.) (reaffirmed categorical approach; statute-overbreadth inquiry)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (Supreme Court) (realistic probability standard as a backstop)