904 F.3d 1101
9th Cir.2018Background
- Myers, a Philippine citizen and lawful permanent resident since Sept. 20, 2006, pleaded guilty in 2011 to a felony under the Travel Act, 18 U.S.C. § 1952(a)(3), for interstate travel to "facilitate" possession with intent to distribute methamphetamine (21 U.S.C. § 841(a)(1)).
- The government initiated removal proceedings alleging Myers was removable as an alien convicted of a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i).
- The IJ sustained removability and denied cancellation of removal because he found Myers had not accrued seven years of continuous U.S. residence prior to the start of proceedings (IJ treated initiation date as Jan. 3, 2013).
- The BIA affirmed: (1) the Travel Act is divisible, allowing the modified categorical approach; (2) the Shepard documents (superseding information and plea agreement) show Myers pleaded to an unlawful activity that was possession with intent to distribute methamphetamine, a federal controlled substance offense; (3) Myers was therefore removable; and (4) the BIA agreed Myers lacked seven years of presence based on January 2013.
- On review, the Ninth Circuit: (a) agreed the Travel Act is divisible and that Myers’s plea shows a controlled-substance predicate, denying review as to removability; (b) held the BIA’s finding that Myers was ineligible for cancellation was not supported by substantial evidence because the BIA relied on the date the notice to appear was issued rather than the date it was served, and remanded the cancellation claim for further agency consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Travel Act conviction can qualify as a "controlled substance offense" under 8 U.S.C. § 1227(a)(2)(B)(i) | Myers: Travel Act covers non-drug offenses and is not a categorical match so conviction cannot be treated as a drug-related removable offense | Gov: Travel Act is divisible; where underlying unlawful activity is a federal drug offense, the conviction qualifies | Held: Travel Act is divisible; under the modified categorical approach Myers’s plea establishes the underlying unlawful activity was methamphetamine distribution, so conviction qualifies as a controlled substance offense (removability affirmed). |
| Whether the BIA properly concluded Myers was ineligible for cancellation of removal for failing the 7-year continuous presence requirement | Myers: He was not served a notice to appear until Oct. 30, 2015, so he had the requisite 7 years from 2006 | Gov: BIA treated proceedings as beginning Jan. 3, 2013; alternatively argues continuous presence ended earlier (e.g., due to Travel Act violation) making dates irrelevant | Held: BIA’s conclusion lacked substantial evidence because it relied on issuance date rather than date of service; remanded to the agency to determine service date and eligibility for cancellation. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (sets out categorical approach framework)
- Descamps v. United States, 570 U.S. 254 (explains modified categorical approach and divisibility analysis)
- Mathis v. United States, 136 S. Ct. 2243 (distinguishes elements from means; divisibility guidance)
- Shepard v. United States, 544 U.S. 13 (limits documents usable under modified categorical approach)
- Mellouli v. Lynch, 135 S. Ct. 1980 (interpreting removal when state schedules differ from federal schedules)
- Johnson v. I.N.S., 971 F.2d 340 (9th Cir.) (applying categorical/modified approach where plea identifies drug-related offense)