ELISIO ATENIA LORENZO v. JEFFERSON B. SESSIONS III, Attorney General
No. 15-70814
United States Court of Appeals for the Ninth Circuit
August 29, 2018
Agency No. A038-467-916
Opinion by Judge Fisher
FOR PUBLICATION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 15, 2018 Pasadena, California
Filed August 29, 2018
Before: Sidney R. Thomas, Chief Judge, and Raymond C. Fisher and Carlos T. Bea, Circuit Judges.*
SUMMARY**
Immigration
The panel granted Elisio Atenia Lorenzo‘s petition for review of a decision of the Board of Immigration Appeals that found Lorenzo removable for a controlled substance offense, holding that: 1) where a state statute contains two layers of disjunctive lists, the analysis outlined in Taylor v. United States, 495 U.S. 575 (1990), for applying the categorical approach, applies to both layers of the statute and must be performed twice; and 2) a methamphetamine conviction under
The panel explained that
However, the panel concluded that the California definition of methamphetamine is broader than the federal definition because the California definition includes both geometric and optical isomers of methamphetamine, while the CSA includes optical isomers, but not geometric isomers. Accordingly, the panel held that the California definition is overbroad under the first step of the categorical approach.
The panel recognized that, in applying the first step of the categorical approach in this case, it had to examine a disjunctive list within another disjunctive list. The panel explained that it was therefore not enough to conclude, as this court had in United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc), that California‘s disjunctive list of controlled substances is overbroad but divisible. Rather, in this instance, another Taylor analysis - addressing whether California‘s disjunctive list of types of methamphetamine is overbroad and, if so, divisible - was also required.
Next, the panel held that the overbroad methamphetamine element of
Having concluded that the California statute is overbroad and not divisible with respect to the overbroad element, the panel explained it could not apply the modified categorical approach to determine whether Lorenzo‘s convictions involved a type of methamphetamine covered by the CSA. As a result, the panel concluded that Lorenzo‘s convictions under
Because the immigration judge and BIA did not address whether Lorenzo was removable on the ground that his
COUNSEL
Benjamin F. Aiken (argued), Orrick Herrington & Sutcliffe LLP, Washington, D.C.; Cathy C. Shyong, Orrick Herrington & Sutcliffe LLP, Menlo Park, California; Karen Johnson-McKewan, Orrick Herrington & Sutcliffe LLP, San Francisco, California; for Petitioner.
Scott G. Stewart (argued), Washington, D.C., for Respondent.
FISHER, Circuit Judge:
This case raises a novel yet straightforward question in our application of Taylor v. United States, 495 U.S. 575 (1990): whether the Taylor analysis must be performed twice if a state statute contains two layers of disjunctive lists. We hold Taylor applies to both layers of the statute. Following this approach, we conclude the definition of “methamphetamine” applicable to convictions under
I.
Lorenzo, a native and citizen of the Philippines, entered the United States in 1983 and has lived in this country as a lawful permanent resident since that time. In 2013, he pled nolo contendere to possession of methamphetamine, in violation of
The Department of Homeland Security initiated removal proceedings against Lorenzo because of his 2013 state convictions. The notice to appear charged Lorenzo with removability under
Lorenzo moved to terminate removal proceedings, contending his methamphetamine convictions did not necessarily involve a controlled substance as defined by federal law. Specifically, he argued the definition of methamphetamine under California law is broader than the definition of methamphetamine under the federal Controlled Substances Act (CSA), because the CSA‘s definition includes only optical isomers of methamphetamine, whereas California law includes both optical and geometric isomers of methamphetamine.
An immigration judge (IJ) denied Lorenzo‘s motion and ordered him removed, concluding that Lorenzo‘s convictions qualified as controlled substance offenses under
II.
We review the BIA‘s determination of purely legal questions de novo, see Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003), including whether a particular conviction under state law is a removable offense, see Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016), and whether a statute is divisible, see United States v. Martinez-Lopez, 864 F.3d 1034, 1039-40 (9th Cir. 2017) (en banc) (citing Almanza-Arenas v. Lynch, 815 F.3d 469, 477 (9th Cir. 2016) (en banc)).
III.
We hold Lorenzo‘s methamphetamine convictions under
A.
We use “a three-step analysis” to determine whether a state conviction qualifies as a controlled substance offense under federal law. See Martinez-Lopez, 864 F.3d at 1038. First, we determine whether state law bars “the same amount of or less conduct than” federal law. Id. (quoting United States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir. 2014)). If so, then the state conviction is a categorical match, and the state conviction is a ground for removability. See id. If the state law encompasses more conduct than the federal law, however, the state conviction does not qualify as a controlled substance offense under the first step in the categorical approach. In that case, we determine whether the state law is divisible - i.e., whether the overly broad element sets out alternative means of committing a single crime or alternative elements of committing two or more distinct crimes. See id. at 1038-39. At step three, if the statute is divisible, we employ the modified categorical approach, where we may look to documents in the record of conviction, but not the particular facts underlying the conviction, to determine whether the conviction qualifies. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). If the statute is overbroad and not divisible, then the conviction cannot be a ground for removal. See id. at 2248-49.
B.
We begin by applying the first step in the categorical approach, determining whether the statutes of conviction are broader than federal law.
The CSA likewise applies to “[a]ny substance” that “contains any quantity of methamphetamine, including its salts, isomers, and salts of its isomers.”
Under
The term “isomer” means the optical isomer, except as used in schedule I(c) and schedule II(a)(4). As used in schedule I(c), the term “isomer” means any
optical, positional, or geometric isomer. As used in schedule II(a)(4), the term “isomer” means any optical or geometric isomer.
Methamphetamine falls under Schedules II(c) (“any injectable liquid which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers“) and III(a)(3) (“Any substance (except an injectable liquid) which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers.“). Thus, for purposes of methamphetamine, the CSA covers only optical isomers. Federal law extends to geometric isomers with respect to substances listed on Schedules I(c) and II(a)(4), but methamphetamine is not included on those schedules.
We have no reason to believe that these distinctions between California and federal law are immaterial. Both California law and federal law go to great lengths to specify the types of isomers covered for specific controlled substances. California law, for example, carefully specifies the controlled substances for which isomers are covered at all. These substances are opiates; opium derivatives; hallucinogenic substances, such as cannabis, peyote and psilocybin; depressants; cocaine base; opium; ecgonine; stimulants, such as amphetamine and methamphetamine; dimethylamphetamine; N-ethylmethamphetamine; gamma hydroxybutyric acid; and fenfluramine. See
Next, like federal law, California law carefully specifies the types of isomers covered for each controlled substance. Under California‘s default rule, both optical and geometric isomers are covered. See
California law and federal law carefully identify the types of isomers included for various controlled substances. California law includes geometric isomers of methamphetamine, but federal law does not.3
On its face, therefore, the California definition of methamphetamine is broader
The government challenges this conclusion on two grounds, neither of which is persuasive. First, the government contends Lorenzo waived this issue by failing to raise it in his opening brief before this court. Lorenzo‘s opening brief, however, plainly argued that California law is overbroad because it “prohibits both optical and geometric isomers of all listed controlled substances,” whereas the CSA “punishes the possession of optical isomers alone.” The government‘s waiver argument, therefore, is without merit.
Second, the government argues Lorenzo‘s convictions qualify as controlled substance offenses in light of United States v. Vega-Ortiz, 822 F.3d 1031 (9th Cir. 2016). There, the defendant argued that California law was broader than federal law because federal law contains a provision requiring the Attorney General to exclude from the CSA‘s controlled substance schedules certain non-narcotic substances that are lawfully sold over the counter, without a prescription, under the federal Food, Drug, and Cosmetic Act. See
We rejected the defendant‘s argument:
Vega-Ortiz . . . maintains that the federal regulation excluding a particular product containing L-meth from the schedule of federal controlled substances renders California‘s definition of methamphetamine broader than the definition of controlled substances in the Controlled Substances Act. However, in addressing a similar argument regarding an exemption for “administering” controlled substances that existed under federal law but not Washington state law, we focused on whether the defendant showed a “realistic probability” that a person would be prosecuted for the offense that assertedly rendered the state statute overbroad. United States v. Burgos-Ortega, 777 F.3d 1047, 1054-55 (9th Cir. 2015); see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (“[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires a realistic probability that the state would apply its statute to conduct that falls outside the generic definition of a crime. . . .“). Applying this analysis to the facts here, to succeed on his claim Vega-Ortiz would need to show a “realistic probability” that he would be prosecuted under
§ 11378 for possession of the excluded product containing L-meth. Burgos-Ortega, 777 F.3d at 1054. He has failed to do so. As in Burgos-Ortega,§ 11378 is not “overbroad on its face” and “does not expressly include conduct not covered by the generic offense, but rather is silent as to the existence of a parallel [L-meth] exception.” Id. at 1055. Thus, Vega-Ortiz‘s overbreadth arguments are unavailing, and we conclude that the district court properly applied the modified categorical approach to§ 11378 .
Id. at 1035-36 (first alteration added).
The government‘s reliance on Vega-Ortiz is misplaced. Vega-Ortiz expressly distinguished a case, such as this one, in which the California statute is overbroad on its face. “Where, as here, a state statute explicitly defines a crime more broadly than the generic definition, no ‘legal imagination,’ is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime. The state statute‘s greater breadth is evident from its text.” United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc) (citation omitted). “[W]hen ‘[t]he state statute‘s greater breadth is evident from its text,’ a defendant may rely on the statutory language to establish the statute as overly inclusive.” United States v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc) (citation omitted). Here, because the mismatch between the federal and state statutes is apparent on the face of the statutes, such that no rational interpretation of either statute would reconcile the two, Lorenzo is not required to “point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Duenas-Alvarez, 549 U.S. at 193.
We similarly reject the reasoning of the IJ and the BIA. The IJ concluded California and federal law were a match under the first step in the categorical approach because geometric isomers of methamphetamine do not exist. The IJ, however, did not substantiate that conclusion, the BIA did not adopt that rationale and the government does not advance a similar argument here. Nor is there evidence in the record to show that geometric isomers of methamphetamine do not in fact exist.
The BIA, in turn, reasoned that, under Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014),
to defeat a charge of removability for a controlled substance violation based on a state law that criminalizes substances that may not be within the purview of the CSA, the respondent must present a realistic probability that the state would prosecute such conduct. Here, although queried by the Immigration Judge, the respondent has presented no evidence of any cases in which a particular isomer was isolated for prosecution, rather than the court using the generic term methamphetamine.
But we are not bound by Ferreira in this case. Although Ferreira, 26 I. & N. Dec. at 420-21, concluded an individual must point to cases in which the state courts applied the statute of conviction in a nongeneric manner even in the case of a facially overbroad statute, we do not accord deference to that conclusion under either Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), or National Cable & Telecommunications Ass‘n v. Brand X Internet Services, 545 U.S. 967 (2005). Deference applies under Chevron and Brand X only “[w]hen a court reviews an agency‘s construction of the statute which it administers.” Chevron, 467 U.S. at 842. Here, because Ferreira‘s holding was an interpretation of Moncrieffe v. Holder, 569 U.S. 184, 206 (2013), and Duenas-Alvarez, 549 U.S. at 193, not an interpretation of the INA, no deference is owed.4
types - e.g., cocaine, heroin, methamphetamine - covered by California law. See Martinez-Lopez, 864 F.3d at 1040-41 (examining that disjunctive list and concluding that the drug types constitute alternative elements under California law). At the more specific level, however, California law also includes disjunctive lists within a drug type, listing, for example, several types of methamphetamine - methamphetamine, its salts, its optical and geometric isomers, and salts of its isomers. See
Although we may not have expressly addressed this situation before, it is apparent that, when this situation arises, we must conduct a Taylor analysis with respect to both disjunctive lists. It is not enough to determine that
C.
Having concluded that methamphetamine convictions under
We first look to “authoritative sources” in state law for a clear answer as to whether geometric and optical isomers of methamphetamine are alternative elements or alternative means. See Mathis, 136 S. Ct. at 2256; Martinez-Lopez, 864 F.3d at 1046. If a state court decision “definitively answers the question,” we rely on that source. Mathis, 136 S. Ct. at 2256.
Here, we have a definitive state law answer: geometric and optical isomers of methamphetamine are alternative means of committing a single offense, not alternative elements of committing several state controlled substance offenses. The methamphetamine element, therefore, is not divisible.
In People v. Schroeder, 70 Cal. Rptr. 491, 499 (Ct. App. 1968), the California Court of Appeal explained that possession
This conclusion finds additional support in the way methamphetamine convictions are characterized by the California courts. The courts, for example, characterize a conviction as involving methamphetamine generally even when it may actually involve crystal methamphetamine - a salt of methamphetamine. See, e.g., People v. Buchanan, 204 Cal. Rptr. 3d 167, 170, 172 (Ct. App. 2016); People v. Logan, 2014 WL 971444, at *1-2 (Cal. Ct. App. Mar. 13, 2014); People v. Serb, 2012 WL 968082, at *2 (Cal. Ct. App. Mar. 22, 2012); People v. Laufasa, 115 Cal. Rptr. 3d 318, 319 (Ct. App. 2010); People v. Vizcarrondo, 2005 WL 2038215, at *1 (Cal. Ct. App. Aug. 25, 2005).
Indeed, charges may not allege the type of methamphetamine at issue unless a sentencing enhancement for crystal methamphetamine applies. California sentencing law provides that, “for an offense involving methamphetamine, the fact that the controlled substance is the crystalline form of methamphetamine” constitutes an aggravating circumstance.
In sum, California law demonstrates that optical and geometric isomers of methamphetamine are alternative means of committing a single controlled substance offense under California law. The government does not argue otherwise. The overly broad methamphetamine element, therefore, is not divisible. Because the California statute is overbroad and not divisible with respect to the overbroad element, we do not apply the modified categorical approach to determine whether Lorenzo‘s convictions involved a type of methamphetamine
Because the IJ and the BIA did not consider whether Lorenzo was removable on the ground that his
PETITION GRANTED; REMANDED.