958 F.3d 844
9th Cir.2020Background
- Three Arizona convictions at issue: Romero-Millan (possession/use of drug paraphernalia, A.R.S. § 13-3415), Hernandez Cabanillas and Garcia-Paz (possession of a narcotic drug for sale, A.R.S. § 13-3408).
- DHS charged the petitioners with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II) as controlled-substance related convictions; removability turns on whether the state statutes are "related to a controlled substance" under federal law.
- Supreme Court precedent (Mellouli and the categorical/divisible/modified-categorical framework) requires connecting an element of the state conviction to a drug defined in the federal drug schedules to support removal.
- The dispositive legal question is whether Arizona’s § 13-3415 and § 13-3408 are divisible by drug type (i.e., whether the identity of the drug is an element requiring jury unanimity), which would allow use of the modified categorical approach.
- Ninth Circuit found Arizona authority unclear and, because the answer decides the immigration outcomes, certified three questions to the Arizona Supreme Court rather than resolving them itself.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Divisibility of A.R.S. § 13-3415 (possession/use of drug paraphernalia) | Romero-Millan: not divisible; statute requires proof only that "a drug" on the list was involved; jury need not agree on drug identity | Government: divisible; drug identity is an element (sentencing rules, pattern instructions, state case law show separate offenses for separate drugs) | Certified to the Arizona Supreme Court for authoritative state-law answer |
| Divisibility of A.R.S. § 13-3408 (possession of narcotic drug for sale) | Cabanillas & Garcia-Paz: not divisible; text, pattern instructions, and some Arizona cases say only that defendant knowingly possessed a narcotic/dangerous drug | Government: divisible; Arizona appellate decisions permit multiple convictions for different drugs, implying each drug type is a separate offense | Certified to the Arizona Supreme Court for authoritative state-law answer |
| Whether jury unanimity/concurrence is required as to which drug listed in A.R.S. § 13-3401 subsections was involved | Petitioners: unanimity not required; jury may convict without agreeing on the specific drug | Government: unanimity (or concurrence) is required because each drug type constitutes a distinct offense | Certified to the Arizona Supreme Court for authoritative state-law answer |
Key Cases Cited
- Mellouli v. Lynch, 575 U.S. 798 (requires linking an element of the state conviction to a drug listed in federal law for removability)
- Descamps v. United States, 570 U.S. 254 (sets out categorical/divisible/modified-categorical framework)
- Taylor v. United States, 495 U.S. 575 (foundational categorical approach principles)
- Mathis v. United States, 136 S. Ct. 2243 (distinguishes elements from means for divisibility analysis)
- Shepard v. United States, 544 U.S. 13 (limits documents courts may consult under the modified categorical approach)
- Villavicencio v. Sessions, 904 F.3d 658 (9th Cir. summary of the three-step immigration/categorical approach)