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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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Sud-Devaraj, Monika OHS/ICE Office of Chief Counsel - EAZ
Law Ofc Monika Sud-Devaraj Eloy Detention Ctr,1705 E. Hanna Rd
141 E. Palm Lane Eloy, AZ 85131
Suite 100
Phoenix, AZ 85004

Name: LOPEZ-CLEMENTE, ERNESTO ... A 078-686-322

Date of this notice: 6/16/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Pauley, Roger
Greer, Anne J.
Mullane, Hugh G.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
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U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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LOPEZ-CLEMENTE, ERNESTO RODRIGO OHS/ICE Office of Chief Counsel - EAZ
A078-686-322 Eloy Detention Ctr, 1705 E. Hanna Rd
ICE, 1705 E HANNA RD Eloy, AZ 85131
ELOY, AZ 85131

Name: LOPEZ-CLEMENTE, ERNESTO ... A 078-686-322

Date of this notice: 6/16/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,
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Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Pauley l Roger
Greer, Anne J.
Mullane 1 Hugh G.

Userteam:

Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
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U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A078 686 322 - Eloy, AZ Date: JUN 1 6 2017


In re: ERNESTO RODRIGO LOPEZ-CLEMENTE a.k.a. Ernesto R Lopez Clemente

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IN REMOVAL PROCEEDING S

APPEAL

ON BEHALF OF RESPONDENT: Monika Sud-Devaraj, Esquire

ON BEHALF OF DHS: Jenny Green


Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] -


Convicted of controlled substance violation

APPLICATION: Termination

The respondent appeals from an Immigration Judge's decision dated February 17, 2017, in
which the above-captioned charge of removal was sustained based on his conviction under section
13-3415 of the Arizona Revised Statutes. The appeal will be sustained and the proceedings will
be terminated.

We review fmdings of fact, including the Immigration Judge's determination of credibility,


under a "clearly erroneous " standard. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion, under
a de novo standard.8 C.F.R. 1003.l(d)(3)(ii).

The respondent is a native and citizen of Guatemala and a lawful permanent resident of the
United States. He was placed into these removal proceedings via service of a Notice to Appear
("NTA ") charging him with being removable under section 237(a)(2)(B)(i) of the Immigration and
Nationality Act, 8 U.S.C. 1227(a)(2)(B)(i), i.e., as an alien convicted of violating a law of any
State, the United States, or a foreign country relating to a controlled substance (Exh. 1). The
Department of Homeland Security bears the burden to establish, by clear and convincing evidence,
that the respondent is removable as charged. See section 240(c)(3)(A) of the Act.

At issue, therefore, is whether the respondent's 2016 conviction for possession of drug
paraphernalia in violation of section 13-3415(A) 1 of the Arizona Revised Statutes (hereafter

1
Although the Immigration Judge's decision references a number of other Arizona statutes at
issue, the main question involves whether Arizona's offense for possession of drug paraphernalia
is a removable offense under section 237(a)(2)(B)(i) of the Act. See I.J. at 1 and Exh.2.

Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
A078 686'322

"section 13-341S(A) ") is "a violation of . . . any law or regulation of a State . . . relating to a
controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C.802))."

At all relevant times,section 13-341S(A) has provided as follows:

It is unlawful for any person to use, or to possess with intent to use, drug

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paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze, pack, repack, store,
contain,conceal,inject,ingest,inhale or otherwise introduce into the human body
a drug in violation of this chapter.Any person who violates this subsection is guilty
of a class 6 felony.

Ariz. Rev. Stat. 13-3415(A). For purposes of this section, the term "drug " is defined to mean
"any narcotic drug,dangerous drug,marijuana or peyote." See Ariz.Rev. Stat. 13-3415(F)(l).
In turn,the terms "narcotic drug " and "dangerous drug " are defined by reference to long lists of
controlled substances. See Ariz.Rev. Stat. 13-3401(6),(20).

According to the Supreme Court, the requirements of the Act's controlled substance
removability grounds are "satisfied when the elements that make up the state crime of conviction
relate to afederally controlled substance." Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015)
(emphasis added). Thus,a conviction for possession of drug paraphernalia supports a finding of
removability under section 237(a)(2)(B)(i) if (and only if) an "element " of the drug paraphernalia
statute is connected to a substance listed in the Federal controlled substance schedules. Id. at 1991.

There is no dispute that section 13-3415(A) is broader than section 237(a)(2)(B)(i) of the Act
because Arizona's definitions of "narcotic drug " and "dangerous drug " are categorically broader
than the federal definition of a "controlled substance." See Alvarado v. Holder, 759 F.3d 1121,
1130 (9th Cir. 2014). Thus, the respondent's conviction cannot render him removable under
section 13-3415(A) unless the OHS demonstrates that the statute is "divisible," and that
consideration of the respondent's conviction record would indicate that the "drug " that he
possessed is a federally-controlled substance. In removal proceedings,we evaluate the divisibility
of criminal statutes by employing the standards set forth in Mathis v. United States, 136 S. Ct.
2243 (2016), and Descamps v. United States, 133 S. Ct. 2276 (2013). See Matter of Chairez,
27 l&N Dec.21 (BIA 2017).

By its terms, section 13-341S(A) requires proof beyond a reasonable doubt that the accused
possessed paraphernalia with the intent to use it as a means of "plant[ing],propagat[ing],[etc.] ....
a drug." Under Mathis and Descamps, the divisibility of section 13-3415(A) thus depends upon
whether the identity of the particular "drug " with which the paraphernalia is to be used is an
"element " of the offense-Le.,a fact that must be proven to the jury,unanimously and beyond a
reasonable doubt,in order to convict-or merely a "brute fact " about which the jury can disagree
while still rendering a guilty verdict. If the former-if, that is, all members of an Arizona jury
would need to agree that the accused intended to use the paraphernalia to "plant,propagate," etc.,
one specific drug to the exclusion of all others before rendering a guilty verdict-then section
13-3415(A) is divisible and the factfinder can undertake a modified categorical inquiry. But if the
latter-if,that is,the jurors could render a guilty verdict even if some of them thought the accused

2
Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
A078 686' 322

intended to use the paraphernalia to ingest cocaine while others thought the accused intended to
use it to ingest heroin)-then section 13-34 l 5(A) is indivisible and a modified categorical inquiry
is impermissible.

On its face, the language of section 13-3415(A) does not specify whether the identity of the
"drug" with which the paraphernalia is to be used is an "element" of the offense or merely a "brute

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fact," although the Arizona pattern jury instruction pertaining to section 13-341S(A) appears to
contemplate that the particular drug will be specified. See RAJI (Criminal) STCI 34.15 (3rd ed.);
accord Almanza-Arenas v. Lynch, 815 F.3d 469, 479-482 & nn. 16, 21 (9th Cir. 2016) (en bane)
(assessing divisibility by looking to the convicting state's pattern jury instructions).

Nevertheless,these jury instructions are not dispositive to our inquiry for two reasons. First,
the jury instructions are persuasive rather than binding authority. See State v. Logan, 30 P.3d 631,
633 (Ariz. 2001) (since 1996,Arizona jury instructions are created by bar association and do not
bear approval of Arizona Supreme Court). Second, Arizona case law is not consistent with a
conclusion that a jury must unanimously agree on which precise drug supports a conviction under
at least some Arizona drug-related statutes. In State v. Lodge, No. 2 CA-CR 2014-01 10,2015 WL
164070, at *4-*6 (Ariz. Ct. App. Jan. 14, 2015) (unpublished), the Arizona Court of Appeals
upheld a section 13-3415(A) conviction despite the fact that the jury instruction did not require a
connection between the paraphernalia and a specific drug,even though the evidence offered at trial
was consistent with the defendant's use of some paraphernalia associated with methamphetamine
and other paraphernalia associated with marijuana. In a similar context, in State v. Prescott, No.
1 CA-CR 15-0188,2016 WL 611656,at *2 (Ariz. Ct. App. Feb. 16,2016) (unpublished),the court
held that possession or sale of a dangerous drug under Ariz. Rev. Stat. 13-3407(A) is "one crime,
regardless of whether the drug possessed or sold is methamphetamine, MOMA, or any other
substance the statutes define as a dangerous drug." 2 The court specifically stated that a "defendant
is not entitled to a unanimous verdict on the precise manner in which the [offense] was committed."
Id. at *2.

Although we note that, as the OHS argues, there are cases involving a prosecution under
section 13-3415(A) in which the jury was instructed to connect the paraphernalia to a particular
drug,we do not find that the overall state of the law is one that definitively reflects that the relevant
statute is divisible. See, e.g., State v. Kelly, No. 1 CA-CR 14-0671, 2015 WL 4538447, at *3
(Ariz. Ct. App. July 28,2015). We further disagree that we should look at the respondent's plea
agreement-in which he states that he possessed a baggie intended for cocaine-in order to discern
whether the identity of the drug is an element of the Arizona statute at issue. While it is true that

2
These opinions are consistent with the Ninth Circuit's view that the identity of a controlled
substance is not an element of other Arizona drug offenses. See Vera-Valdevinos v. Lynch, 649 F.
App'x 597,598 & n.l (9th Cir. 2016) (holding that Ariz. Rev. Stat. 13-3408-which prohibits
possessing,selling,manufacturing,administering,procuring,transporting,importing,and offering
to transport a "narcotic drug"-is overbroad and indivisible vis-a-vis section 101(a)(43)(B) of the
Act because an Arizona jury need not make any finding of fact with respect to the identity of the
particular drug at issue).

3
Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
A078 686'322

in Mathis v. United States, supra, taking a "peek" at conviction documents was discussed with
approval for certain "limited purpose[s]," here,the inclusion of a certain drug in the plea agreement
does not assist us in determining whether the identity of the drug is an element of the offense
defined by section 13-3415(A). See Mathis v. United States, supra, at 2256; Matter of Chairez,
supra, at 24 (if an admission in a plea agreement is not tethered to any fact charged in the amended
information,that admission does not establish the divisibility of a statute).

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We are also unpersuaded by the DHS's argument that we should construe the "relating to"
language in section 237(a)(2)(B)(i) by considering whether the underlying statute proscribes
possession of a "drug, controlled substance, narcotic, or similar term" and then automatically
consulting the record of conviction to determine if the underlying drug is on the federal schedule.
See DHS's Brief at 19. Such an approach is precluded by Mellouli v. Lynch, supra, in which the
court stated that construction of section 237(a)(2)(B)(i) "must be faithful to the text, which limits
the meaning of 'controlled substance,' for removal purposes,to the substances controlled" under
the federal schedules. Mellouli v. Lynch, supra, at 1983.

For the foregoing reasons,we agree with the respondent that his conviction for possession of
drug paraphernalia under section 13-341S(A) is overbroad and indivisible relative to the definition
of a controlled substance offense and thus cannot serve as a predicate for his removal under section
237(a)(2)(B)(i) of the Act-the sole charge of removability. Because the DHS cannot meet its
burden of proof with regard to this charge, we will terminate these removal proceedings. See
Matter ofSanchez-Herbert, 26 I&N Dec. 43,44 (BIA 2012). Accordingly, the following orders
will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The removal proceedings are terminated.

4
Cite as: Ernesto Rodrigo Lopez-Clemente, A078 686 322 (BIA June 16, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
ELOY, ARIZONA

IN THE MATTER OF: ) IN REMOVAL PROCEEDINGS

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)
LOPEZ-CLEMENTE, )
Ernesto Rodrigo ) FILE NO. A078-686-322
)
RESPONDENT DATE:
__________ )
)

CHARGE: Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA " or
"the Act ") as an alien who has committed an offense "relating to " a
controlled substance.

ON BEHALF OF THE RESPONDENT ON BEHALF OF THE DEPARTMENT


Roberta Wilson Assistant Chief Counsel
Law Office of Monika Sud-Devaraj & Associates Department of Homeland Security
141 East Palm Lane, Suite 100 1705 East Hanna Road
Phoenix, Arizona 85004 Eloy, Arizona 85131

MEMORANDUM AND ORDER OF THE IMMIGRATION COURT


I. PROCEDURAL HISTORY
The above named Respondent is a native and citizen of Guatemala. [Exh. 1, Form 1-862.]
He entered the United States on or about December 26, 2000, then had his status adjusted to
lawful permanent resident on November 20, 2011. [Jd. ] On February 10, 2016, Respondent was
convicted of Possession or Use of Drug Paraphernalia, in violation of A.R.S. 13-3401, -3415, -
3407, 12-116.04, 13-3423/12-116.08, 12-269, 13-610, -901.0l (A), 901.0l (D), 3418, 604, 701,
702, 707, 801, and 802. [Exh. 2, Conviction Docs.]
As a result of this conviction, on November 10, 2016, the Department of Homeland
Security ("the Department" or "DHS") issued a Notice to Appear ("NTA ") against the
Respondent, based on this conviction, charging him as removable pursuant to section
237(a)(2)(B)(i) of the Act for having been convicted of a violation of (or a conspiracy or attempt
to violate) any law or regulation of a State, the United States, or a foreign country relating to a
ontrolled substance (as defined in section 201 of the Controlled Substances Act, 21 U.S.C. 802),
other than a single offense involving possession for one's own use of 30 grams or less of
marijuana. [Exh. I.]

LPEZ-CLEMENTE, Emo Rodrigo
A078-686-322
. At an initial master hearing on December 28, 2016, Respondent admitted allegations (1)
(4) contained in the NTA, but denied allegations (5) and (6), disputing the date of his adjustment
of status, and denying both his conviction for Possession or Use of Drug Paraphernalia, as well
as the charge of removability. [Hr'g (Dec. 28, 2016).] Respondenfl ater admitted allegation (5),
regarding his adjustment of status. [Hr'g (Feb. 6, 2017).] The Court considered docents
submitted by the Department [Exh. 2], and found the allegations regarding his conviction

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sustained the charge of removability. In so doing, the Court denied the Motion to Terminate,
initially filed by Respondent on January 1 7, 2017, and accepted by the Court on January 30,
2017. [Hr'g (Feb. 6, 2017).] At the master reset hearing on February 6, 2017, Respondent's
counsel stated that Respondent would not be pursuing relief and the Court indicated it would be
issuing a written decision on removal. [Jd. ]
II. REMOVABILITY
A. Allegation Six (6)
Where, as here, a respondent is charged with deportability, the Department must "prove[]
by clear and convincing evidence that the [R]espondent is deportable as charged." 8 C.F.R.
1240.8(a). The Department presents a plea agreement and sentencing documents, demonstrating
that Respondent was convicted of Possession or Use of Drug Paraphernalia, in violation of
A.R.S. 1 3-3401, -3415, -3407, 1 2-11 6.04, 13-3423/1 2- 11 6.08, 12-269, 1 3-610, -901.0l (A),
901.0l (D), 341 8, 604, 701 , 702, 707, 801 , and 802, and that he was sentenced to two (2) years of
probation. [Ex. 2.]; see also United States v. Armstrong, 517 U.S. 456, 464 (1 996) (presumption
of regularity assumes that public officials I?roperly discharge their duties by placing correct
information on forms). Respondent has not challenged the validity or veracity of these records.
Therefore, based on these presumptively valid documents, the Court sustains allegation six (6).
B. INA 237(a)(2)(B)(i)
An alien is removable pursuant to INA 237(a)(2)(B) if "at any time after admission [he
or she] has been convicted of a violation of (or a conspiracy or attempt to violate) any law or
regulation of a State, the United States or a foreign country relating to a controlled substance (as
defined in section 102 of the Controlled Substances Act (21 U.S. C. 802)). . . " Here, Respondent
was convicted of Possession or Use of Drug Paraphernalia, in violation of Arizona law. The
Court's analysis on whether this conviction "relates to" a federally controlled substance follows.
1. The Analytical Model
In order "to trigger removal under INA 237(a)(2)(B)(i) the Department must connect an
element of the alien's conviction to a drug "defined in [21 USC 802]." Mellouli, 135 S. Ct. at
1 990. To assess whether a state conviction qualifies as an "offense relating to a controlled
substance," the court first employs the "categorical approach" to determine whether the state
offense matches the "generic" federal definition; that is an "offense relating to a controlled
substance" as defined in section 102 of the Controlled Substances Act (21 U.S. C. 802) [other
than a single offense involving possession for one's own use of thirty grams or less of

2
.
LOPEZ-CLEMENTE, Ernesto Rodrigo
A078-686-322
marij\lana] . INA 237(a)(2)(B)(i). Mellouli, 1,35 S. Ct. at 1986 -1987 (the categorical approach
"has a long pedigree in our Nation's immigration law); Moncrieffe v. Holder, 133 S. Ct. 1678,
1684 (2013). The court does so by "compar[ing] the elements of the statute of conviction with a
federal definition of the crime to determine whether conduct proscribed by the statute is broader
than the generic federal definition. " Rodriguez-Castellon v. Holder, 133 F.3d 847, 853 (9th Cir.
2013). "An offense's "elements " are those facts about the crime which "[t]he Sixth Amendment

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contemplates that a jury-not a sentencing court-will find . . . unanimously and beyond a
reasonable doubt. " Descamps, 133 S. Ct. at 2288. In making that comparison, the court must rely
exclusively on the elements of the two crimes, "[b]ecause we examine what the state conviction
necessarily involved, not the facts underlying the case, [and so] must presume that the conviction
'rested upon [nothing] more than the least of th[e] acts' criminalized. " Moncrieffe, 133 S. Ct. at
1684 (emphasis added).
Where the state statute is "divisible ", "set[ting] out one or more elements of the offense
in the alternative, " "[t]he court can then do what the categorical approach demands: compare the
elements of the crime of conviction (including the alternative element used in the case) with the
elements of the generic crime. " Descamps, 133 S. Ct. at 2281 . In identifying the elements of the
statute of conviction, the court looks not only to the text of the statute, but also to how state
courts have interpreted and applied the statute. Covarrubias Teposte v. Holder, 632 F.3d 1049,
1054 (9th Cir. 2011). The court "then determines whether even those acts are encompassed by
the generic federal offense. " Id. ; Descamps, 133 S. Ct. at 2283. A "conviction [categorically]
qualifies as [a generic offense] only if the statute's elements are the same as, or narrower than,
those of the generic offense. " Id. at 2279.
However, "great care " must be taken in assessing whether a disjunctively worded statute
is divisible because such "may simply be [indivisibly] listing alternative means rather than
[divisibly listing] alternative elements ", i.e. functionally separate crimes which "[t]he Sixth
Amendment contemplates that a jury-not a sentencing court-will find . . . unanimously and
beyond a reasonable doubt. " Rendon, 764 F.3d at 1089, n.15; Descamps, 133 S. Ct. at 2288
(2013). In such a case the indivisible statute qualifies as a geeric offense only if all the conduct
it encompasses is included within the scope of the generic definition. Rendon, 164 F.3d at 1085;
Descamps v. U.S. , 133 S. Ct. 2276 (2013).
A statute of conviction is broader than the generic definition where there is "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. " Ramirez v. Lynch, 810 F.3d 1127 (9th Cir. 2016);
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). This "realistic probability " 1 can be

1
The court acknowledges that the term used by the 9th Circuit Court of Appeals in Leal was "realistic possibility",
not "probability," but this court uses the latter term as more consistent with the jurisprudence of both 9th Circuit and
the Supreme Court. See, e.g.; Linares-Gonzalez v. lynch, 20 1 6 WL 1 084735 (9th Cir. 201 6); Ramirez v. Lynch, 8 1 0
F.3d I 127 (9th Cir. 20 1 6); Medina-Lara v. Holder, 11 1 F.3d 1 1 06 (9th Cir. 20 14); Nunez v. Holder, 594 F.3d 1 1 24
(9th Cir. 20 1 0); Moncrieffe v. Holder, 1 33 S.Ct. 1 678 (20 1 3); and Gonzales v. Duenas-Alvarez, 549 U.S. 1 83, 1 93
m
3
C

LPEZ-CLEMENTE, Emo Rodrigo
A078-686.. 322
established "based on factual evidence of actual convictions, on unpublished and nonprecedential
opinions, on statutory language and the logic of published opinions, or some combination
thereof." Leal v. Holder, 111 F.3d 1 1 40 (9th Cir. 201 4); Nicanor-Romero v.Mukasey, 523 F.3d
992, I 005 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos v. Holder, 558
F.3d 903, 91 1 (9th Cir. 2009) (en bane)." If the "swath " of conduct proscribed by an indivisible
statute is broader than the elements of the generic definition, the conviction is categorically not a

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generic offense.Descamps, 1 33 S.Ct. at 2281.
"In a 'narrow range of cases,' when the statute at issue is divisible, we may employ a
"modified categorical approach." Id. at 2283-85. "If at least one, but not all of [the] crimes
[listed as alternative sets of elements] matches the generic version, a court needs a way to find
out which the defendant was convicted of. " Id. at 2285. "In these instances, [the court may
employ a "modified categorical approach " to] look beyond the elements of the statute to the
documents of conviction, i. e. , to "the state charging document, a signed plea agreement, jury
instructions, guilty pleas, transcripts of a plea proceeding and the judgment, " to determine
whether the petitioner was convicted of a set of elements that falls within the generic definition."
Ramirez, 81 0 F.3d at 1 1 31 ; Fernandez-Ruiz v. Gonzales, 466 F.3d 1 12 1 , 1 1 32 (9th Cir. 2006)
(citing Hernandez-Martinez v. Ashcroft, 343 F.3d 1 075, 1 076 (9th Cir. 2003)).
The modified categorical approach is thus "a tool " that allows this court to apply the
categorical approach. Descamps, 1 33 S.Ct. at 2285. Moreover, "[i]t retains the categorical
approach's central feature: a focus on the elements, rather than the facts, of a crime, " as well as
its "basic method. " Id.
Finally, while this court may apply the modified categorical approach to determine the
alternative element of a divisible statute upon which the conviction is based, the modified
'categorical approach may not be employed to an indivisible statute where the "swath " of conduct
proscribed is broader than the elements of the generic definition. Descamps, 1 33 S.Ct. at 2281 ;
Almanza v. Holder, 771 F.3d 1 184 (9th Cir. 201 4); Rendon v. Holder, 764 F.3d 1 077 (9th Cir.
201 4).
2. Categorical Analysis
Respondent was convicted of Possession or Use of Drug Paraphernalia, in violation of
A.R.S. 1 3-3401 , -341 5, -3407, 1 2-1 1 6.04, 1 3-3423/12- 1 1 6.08, 1 2-269, 1 3-61 0, -901 .0l (A),
901 .0l (D), 341 8, 604, 701 , 702, 707, 801 , and 802 [Exh. 2.] Section 1 3-341 5 of the Arizona
Revised Statutes proscribes possession of drug paraphernalia, and, as noted by the Department,
defines "drug " in subsection (F) as "any narcotic drug, dangerous drug, marijuana or peyote."
Section 1 3-3401 of the Arizona Revised Statutes, further defines "narcotic drug " and "dangerous
drug " with disjunctive lists of scores of different substances. A.R.S. 1 3-3401 (6) and (20). The
Arizona listing of "narcotic drugs " and "dangerous drugs " are not coextensive with the 2 1 USC
802 federal schedules in that the Arizona definitions are broader than the federal definition of
"controlled substance." See Matter of Huerta-Flores, 201 0 WL 5808899 (BIA 20 I0)
(unpublished) (the Arizona definition of a narcotic drug is not an identical match to the federal

4
. C
LOPEZ-CLEMENTE, Ernesto Rodngo
' . C
A078-686322
schedules of controlled substances published pursuant to the Controlled Substances Act in that
the Arizona list includes two additional drugs - benzylfentanyl and thenylfentanyl); Alvarado v.
Holder, 759 F.3d 1121, 1130 (9th Cir. 2014) (Arizona's definition of "dangerous drug " is
categorically broader than the federal definition of "controlled substance. ") Consequently, the
Arizona statute is overbroad and Respondent's conviction is not categorically relating to a
Federal controlled substance. Madrigal-Barcenas v. Lynch, 797 F.3d 643, 645 (9th Cir. 2015)

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(the number of controlled substances punished by state law, but not encompassed by federal law,
is "unimportant " because "it is the fact, not the degree, of over-inclusiveness that matters " is
determining whether there is a categorical match).
The divisibility of the term "drug " as disj unctively defined by Arizona law appears to be
patently manifest. However, the use of a disjunctive does not necessarily resolve whether the
statute "contains 'multiple, alternative elements of functionally separate crimes,' and [whether]
as to each alternative element, the jury 'must then find that element, unanimously and beyond a
reasonable doubt'. " Padilla-Martinez v. Holder, 770 F.3d 825 (9th Cir, 2014) quoting Descamps
v. U S. , 133 S.Ct. 2276, 2285, 2290 (2013). More dispositive is whether "state law treats the type
of controlled substance as a separate element in prosecuting relevant drug offenses. " Id. at 831,
fn.3.
Arizona case law on the question is limited. A recent unpublished, not controlling,
decision in the Arizona Court of Appeals, Division l , held in a charge of possession or sale of a
dangerous drug, where the term "dangerous drug " is defined with reference to A.R.S. 13-3401
- the same statute at issue here - that "although a defendant is entitled to a unanimous jury
verdict on whether the criminal act charged has been committed, the defendant is not entitled to a
unanimous verdict on the precise manner in which the act was committed." State v. Prescott,
2016 WL 611656 (Ariz.Crt.App.Div 1 2016) (unpublished) (emphasis added). In that case the
defendant was originally charged with possession or sale of "methamphetamine, a dangerous
drug. " The defendant, who asserted that he believed the substance to be MDMA, argued that a
conviction could only inure if the State proved that he knew the substance involved was
methamphetamine. The State argued that inasmuch as both MOMA and methamphetamine are
"dangerous drugs " as defined by A.R.S. 13-3401, that it need only prove that the defendant
knowingly sold and possessed "any dangerous drug. " The trial court agreed and instructed the
jury that the State was required to prove that the substance involved was "a dangerous drug. "
The appellate court observed that mthe State's burden in a criminal trial is to prove the essential
elements of the crime charged. ' A.R.S. l 3-3407(A)(2, 7) provides that a person shall not
knowingly ' [p]ossess a dangerous drug for sale' or 'sell . . . a dangerous drug.' Thus under the
language of the statute, the State is only required to prove a defendant knowingly sold and
possessed a dangerous drug. . . . Accordingly, we conclude the trial court's substitution of the
term, 'dangerous drug,' for the term 'methamphetamine' in the jury instructions did not change
the nature of the originally charged offenses. " Id. (quoting State v. Bloomer, 156 Ariz. 276, 279
(Ariz.Crt.App. 1 987)). Thus, in Prescott, the prosecutor, the trial court, and the three-member
panel of the appellate court all agree that while the State must prove that the substance involved

5
'
.
C'
LOPEZ-CLEMENTE, Ernesto Rodrigo
'

A078-686.,322
was "q dangerous drug," and that it need not be proven which specific "dangerous drug" was
involved. However, Prescott is unpublished and not controlling.
Inasmuch as the Arizona statute indivisibly proscribes conduct relating to a "dangerous
drug " rather than a specific drug as an element of the offense, the statute is broader than the
elements of the generic definition and the conviction is not categorically an offense relating to a
controlled substance.

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3. Modified Categorical Analysis
The Court now employs a modified categorical analysis of the record of conviction to
resolve the question of what drug was involved in Respondent's conviction.
As noted, a court may employ the modified categorical approach if the statute of
conviction clivisibly criminalizes separate crimes. The Court finds that A.R.S. 1 3-3401 is a
disjunctive list of elements and is therefore divisible. The Court can therefore look at certain
documents to determine whether Respondent's conviction was connected to a controlled
substance as defined in 2 1 U.S. C. 802. The plea transcript includes the following factual basis:
Mr. Buesing: On January 28 th of 201 5, while in Phoenix, Maricopa County, Mr. Lopez
Clemente did knowingly possess a baggie. He possessed that with the intent that the
baggie contained a narcotic or, specifically, cocaine . . . .
The Court: Are those facts correct?
The Defendant: Yes.
[Exh. 3, Plea Transcript at 9.]
The factual basis indicates that the drug involved in Respondent's conviction was
cocaine. Cocaine is a controlled substance defined in 2 1 U. S.C. 802 and therefore Respondent
has been convicted of a crime relating to a controlled substance and is removable pursuant to
237(a)(2)(B)(i) of the Act. 21 USC 802 and 812. Accordingly, the Court SUSTAINS the
charge of removability.
III. RELIEF FROM REMOVABILITY
The Court questioned Respondent regarding eligibility for relief from removal.
Respondent's counsel notified the Court that Respondent had considered asylum, but his claims
of fear are not ones recognized under immigration laws. As a result, he will not file an asylum,
withholding or CAT protection application. [Hr'g (Feb. 6, 2017).] Respondent committed
Possession or Use of Drug Paraphernalia on January 28, 201 5, less than five (5) years after being
admitted for Lawful Permanent Residence. [Id ; Ex. 3.] Since this Court has already determined
that this crime constitutes a removable offense pursuant to INA 237(a)(2), Respondent is
statutorily ineligible for cancellation of removal for certain lawful permanent residents. INA
240A(a)(l ) (correspond with INA 240A(d)(l )(B)).

6
.
LOPEZ-CLEMENTE, Ernesto Rodrigo
A078-686.:322
. Respondent was admitted to the United States as an LPR on November 20, 20 1 1 , and
placed into proceedings on November 1 0, 2 0 1 6. [Ex. 1 .) Respondent has failed to reside in the
United States for a period of at least seven (7) years "immediately preceding the ate of initiation
of proceedings to remove the alien from the United States." See INA 2 1 2(h)(2). Accordingly,
Respondent is also ineligible to re-adjust his status via an INA 2 l 2(h) waiver. See generally
Negrete-Ramirez v. Holder, 74 1 F.3d 1 047, 1 054 (9th Cir. 20 1 4) ("[O]nly noncitizens who

Immigrant & Refugee Appellate Center, LLC | www.irac.net


entered into the United States as LPRs are barred from eligibility to apply for the 2 1 2(h)
waiver."). Based on the above, the Court finds Respondent has no relief from removal available
and orders him removed to Guatemala.
IV. CONCLUSION
Based on the foregoing, the court finds that the Department has established by clear and
convincing evidence that Respondent' s conviction is "relating to a controlled substance" and the
charge pursuant to INA 237(a)(2)(B)(i) i s sustained. Furthermore, no relief from removal is
available to Respondent.
Accordingly the Court will enter the following orders:

ORDERS: IT IS ORDERED the charges of removability against Respondent


pursuant to INA 237(a)(2)(B)(i) be HEREBY SUSTAINED;

IT IS FURTHER ORDERED that Respondent be hereby removed from


the United States to GUATEMALA.

APPEAL RIGHTS: Both parties have the righ o appeal the decision of the Immigration Judge
in this case. Any appeal is due in the hands o the Board of Immigration Appeals on or before
thirty calendar days from the date of service of this decision.

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL (M) . PERSONAL SERV}-\ E (P)
TO: ( ) AL N j ) ALIEN c/o Custodial Officer ()ALIEN'S T/REP DHS lf1
DATE: d-,
!
L\ 7. I l
l BY COURT STAFF: - - ----,J.----
Attachments: ( ) EOIR-33 ( ) EOIR-28 ( ) Legal Services t ( ) Other

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