JONATHAN AGUIRRE-ZUNIGA v. MERRICK B. GARLAND, Attorney General of the United States
No. 21-1201
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 2, 2021 — DECIDED JUNE 16, 2022
Petition for Review of an Order of the Board of Immigration Appeals. No. A089-508-923
Before SYKES, Chief Judge, FLAUM and JACKSON-AKIWUMI, Circuit Judges.
The question before the Court is whether the Indiana law prohibiting the delivery of methamphetamine criminalizes more conduct than the corresponding federal law given that Indiana defines “methamphetamine” in a way federal law does not. Aguirre-Zuniga‘s freedom to remain in the United States hangs in the balance. For when a state statute is broader than its federal counterpart, a conviction under that statute cannot trigger a noncitizen‘s deportation. We hold that Aguirre-Zuniga‘s conviction is not an aggravated felony for purposes of removal because the statute of his conviction is facially overbroad. We therefore grant Aguirre-Zuniga‘s petition, vacate the BIA‘s decision, and remand for further proceedings.
I
Aguirre-Zuniga‘s family immigrated from Mexico to the United States when he was three years old. He resides in Indiana, where he has lived since he was eight years old and where he is now raising his own six-year-old daughter, an American citizen. He became a lawful permanent resident fifteen years ago. His primary language is English, and he has visited Mexico only three times since emigrating as a toddler.
In November 2018, Aguirre-Zuniga pled guilty to one count of dealing methamphetamine under
The IJ denied the motion to terminate, and Aguirre-Zuniga filed a motion for reconsideration. In denying the latter motion, the IJ reasoned that although the Indiana Statute was “facially overbroad,” Aguirre-Zuniga was nonetheless removable because he had not demonstrated under the “realistic probability” test that the state had ever prosecuted a case based on positional isomers of methamphetamine.
The BIA affirmed the IJ‘s decision. The BIA stated that the categorical approach—used to determine whether a conviction is an aggravated felony for immigration purposes—focuses on the minimum conduct required to satisfy the elements of the state statutory offense. But the BIA held that Aguirre-Zuniga still had to show a “realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” According to the BIA, because Aguirre-Zuniga did not show that “the State court actually applied the statute to an offense involving a substance that is not federally controlled,” his conviction counts as an aggravated felony. Aguirre-Zuniga timely petitioned this Court for review of the BIA‘s decision.
II
Aguirre-Zuniga‘s petition raises a question of law—whether the Indiana Statute is overbroad—therefore jurisdiction is proper.
A. The Categorical Approach
Under the Immigration and Nationality Act (INA), the Department of Homeland Security may remove noncitizens for a variety of reasons, including if they commit an “aggravated felony at any time after admission” to the United States.
When the government seeks to remove a noncitizen under this statute, courts “employ a categorical approach by looking to the statute of conviction, rather than to the specific facts underlying the crime.” Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017) (citation omitted). In this analysis, courts determine the minimal conduct criminalized by the state statute at the time of conviction by comparing the elements of the state statute with that of the federal analog. Shular v. United States, 140 S. Ct. 779, 783 (2020) (citation omitted); Mellouli v. Lynch, 575 U.S. 798, 808 (2015) (determining minimum conduct at the time of petitioner‘s conviction). When “the [state] statute is categorically broader than the federal definition” on its face, the conviction is not an aggravated felony. United States v. Ruth, 966 F.3d 642, 647 (7th Cir. 2020), cert. denied, 141 S. Ct. 1239 (2021); United States v. De La Torre, 940 F.3d 938, 951–52 (7th Cir. 2019).
The Supreme Court has divided the categorical approach into two distinct methodologies, which we have previously called
If the plain language of the state statute is ambiguous or has indeterminate reach, courts then turn to the “realistic probability” test, which acts as a “backstop.” Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018) (citation omitted); Salmoran v. Attorney General, 909 F.3d 73, 81–82 (3d Cir. 2018). Under this test, the petitioner “must at least point to [their] own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which [they] argue[].” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
In the agency proceedings below, the government asserted that even when a statute is facially overbroad under the categorical approach, noncitizens must still satisfy the realistic probability test. On appeal, the government wisely concedes that courts first apply the categorical approach and look to realistic probability only if the statute is ambiguous.
Our holdings in De La Torre and Ruth make this clear. We applied the categorical approach and concluded that the state statutes at issue were overbroad. Ruth, 966 F.3d at 647; De La Torre, 940 F.3d at 951. The government raised “theoretical” challenges to this view in both cases, which we rejected. See Ruth, 966 F.3d at 648; De La Torre, 940 F.3d at 952. In De La Torre, the government argued that the statute was not overbroad because “geometric isomers of methamphetamine do not exist in the real world, and thus the [federal and state] statutes actually mirror each other.” 940 F.3d at 951. We explained that this argument was irrelevant “when the plain language chosen by the Indiana legislature dictates that the Indiana statute is categorically broader than the federal definition of felony drug offense.” Id. at 952. Likewise, the government suggested in Ruth that the state statute at issue was coextensive with federal law because “positional isomers of cocaine [do not] exist in the drug trade.” 966 F.3d at 648. We noted that “[i]t is not the province of the judiciary to rewrite Illinois‘s statute to conform to a supposed practical understanding of the drug trade.” Id. We then held that when “the state statute of conviction is plain and intentional, our job is straightforward: we compare the state statute to the federal recidivism statute at issue and ask only if the state law is the same as or narrower than federal law.” Id.
To the extent there is any room for doubt in our case law, we reaffirm our statement in Ruth: If the statute is overbroad on its face under the categorical approach, the inquiry ends. Id. After applying the categorical approach, if the court determines that the statute is ambiguous or has indeterminate reach, only then will the court turn to the realistic probability test. See Gonzalez v. Wilkinson, 990 F.3d 654, 660 (8th Cir. 2021) (citation omitted) (realistic probability test applies to “‘conduct that falls outside the generic definition of a crime [and] operates as a
B. The Indiana Statute
Having clarified the proper analysis, we turn to the Indiana Statute. The INA defines “aggravated felony” to include “illicit trafficking in a controlled substance (as defined in section 802 of Title 21).”
Under federal law, methamphetamine is a Schedule II or III controlled substance that includes “its salts, isomers, and salt of isomers.”
The Indiana Statute provides that someone commits a felony when they “knowingly or intentionally deliver[] ... methamphetamine, pure or adulterated.”
We analyzed an Indiana statute like the one at issue here in De La Torre. The defendant there was convicted of dealing methamphetamine under
Aguirre-Zuniga argues that De La Torre directly applies to his case, but that is not so easily done. First, the statute in De La Torre (
Courts should read statutory provisions in the context of surroundings provisions. Util. Ctr., Inc. v. City of Ft. Wayne, 868 N.E.2d 453, 457 (Ind. 2007); see Mellouli, 575 U.S. at 809 (citation omitted) (“Statutes should be interpreted as a symmetrical and coherent regulatory scheme.“). As noted above, the only definition in the Indiana Code regarding methamphetamine appears in Schedule II, and at the time of Aguirre-Zuniga‘s conviction, there was no reference to Schedule II and therefore no applicable definition of “isomer.”
The plain language of a statute is “the best evidence” of the legislature‘s intent. De La Torre, 940 F.3d at 951 (citations omitted). An “isomer” is a substance that is “[c]omposed of the same elements in the same proportions, and having the same molecular weight, but forming different substances, with different properties (owing to the different grouping or arrangement of the constituent atoms).” See “Isomer” and “Isomeric,” Oxford English Dictionary, Oxford Univ. Press (2d ed. 1989), https://www.oed.com/oed2/00121969. Methamphetamine has optical and positional isomers, and methamphetamine itself exists in two isomeric forms, l-methamphetamine and d-methamphetamine, which themselves can be combined into a potential third iteration known as a “racemic mixture,” dl-methamphetamine.3
With other drugs, the Indiana legislature criminalized only certain types of isomers in Schedule I and other parts of Schedule II. See, e.g.,
Moreover, as of July 1, 2020, the Indiana Code now defines “isomer” for methamphetamine as “an optical isomer.”
The government, on the other hand, sees the Indiana legislature‘s omission of the language referencing the schedules in 2006 as critical to its position. Without this language, the government argues, the Indiana Statute is merely silent as to what isomers, if any, it criminalizes. In the government‘s view, because the Indiana Statute does not include an explicit reference to the schedules, the statute does not cover any isomers, so the statute is not broader than federal law.
The government‘s view, however, begs the question: How does Indiana law define “methamphetamine“? The government‘s brief is mum on the issue. And, when asked at oral argument, the government responded that “meth means meth.” But that recursive logic does not comport with the chemistry. Methamphetamine itself is comprised of two optical isomers. If the Indiana Statute does not cover any isomers, it arguably would not reach methamphetamine itself. Such a view would render the Indiana Statute impotent—a criminal statute that criminalizes nothing. The government‘s position would have us drive the Indiana Statute into a no man‘s land. We decline to do so. The definition of methamphetamine from Schedule II proscribes the scope of the Indiana Statute.
III
Because there are optical and positional isomers of methamphetamine, and the Indiana legislature chose not to limit the Indiana Statute to optical isomers at the time of Aguirre-Zuniga‘s conviction, “Indiana‘s generic use of ‘isomer’ in relation to methamphetamine must be broader than optical isomers.” De La Torre, 940 F.3d at 951. Section 35-48-4-1.1 was facially overbroad at the time of Aguirre-Zuniga‘s conviction; thus, it does not qualify as an aggravated felony under the INA. We therefore GRANT Aguirre-Zuniga‘s petition, VACATE the BIA‘s decision, and REMAND the matter to the BIA for further proceedings consistent with this opinion.