Jorge Romero-Millan v. Merrick Garland

Citation: Not availableDocket: 16-73915

Court: Court of Appeals for the Ninth Circuit; August 29, 2022; Federal Appellate Court

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The Ninth Circuit denied the petitions for review from Jorge Romero-Millan and Ernesto Hernandez Cabanillas regarding decisions by the Board of Immigration Appeals (BIA). The court held that Arizona's drug possession statute (A.R.S. 13-3408) and the drug paraphernalia statute (A.R.S. 13-3415) are divisible by drug type. Romero-Millan's conviction under A.R.S. 13-3415 rendered him inadmissible, while Hernandez Cabanillas, a lawful permanent resident, was deemed removable due to his A.R.S. 13-3408 conviction. The BIA employed a modified categorical approach to classify their Arizona convictions as controlled substance offenses under federal law. 

The court had previously certified questions to the Arizona Supreme Court regarding the divisibility of these statutes. The Arizona Supreme Court ruled that it improperly accepted the first two questions, emphasizing that divisibility is a federal issue. However, it confirmed that jury unanimity is required for drug identity in A.R.S. 13-3408, but refrained from commenting on A.R.S. 13-3415 due to pending state court interpretations. 

Despite the petitioners' concerns about the jurisdiction-stripping provision of 8 U.S.C. 1252(a)(2)(C), the panel clarified that divisibility is a legal question reviewable under 8 U.S.C. 1252(a)(2)(D). The court concluded that A.R.S. 13-3408's requirement for jury unanimity supports its divisibility and validated the BIA's application of the modified categorical approach. The panel determined that the underlying drug for Hernandez Cabanillas’s conviction was cocaine, a controlled substance under federal law.

Possession of drug paraphernalia under A.R.S. 13-3415 is determined to be divisible by drug type, as held by the panel. The Supreme Court of Arizona refrained from addressing the issue of jury unanimity concerning this statute. The panel found that the statutory text, Arizona case law, sentencing guidelines, jury instructions, and Romero-Millan's conviction record supported the conclusion that A.R.S. 13-3415 is divisible. Consequently, the Board of Immigration Appeals (BIA) correctly applied the modified categorical approach to Romero-Millan’s conviction, which was found to involve cocaine.

Petitioners Jorge Romero-Millan and Ernesto Hernandez Cabanillas, both Mexican nationals, sought review of their removal orders based on their state law convictions for controlled substance offenses. The panel noted a discrepancy between the lists of controlled substances under Arizona and federal law, specifically mentioning that Arizona includes benzylfentanyl and thenylfentanyl, which are not listed federally. This difference led to the certified questions regarding the divisibility of Arizona's drug laws. The Supreme Court of Arizona, after accepting certification, declined to answer the questions about the divisibility of A.R.S. 13-3415 and A.R.S. 13-3408, stating that such divisibility pertains solely to federal law and has not been addressed by Arizona courts. The panel subsequently denied the petitions for review.

The court determined that under federal law, the divisibility of a criminal statute hinges on whether it presents alternative elements of an offense rather than alternative methods of committing a crime. The Ninth Circuit's request for analysis does not align with Arizona law, as no Arizona court has addressed criminal statute divisibility. Consequently, the court vacated its order to accept jurisdiction over the first two certified questions, which were unrelated to Arizona state law. Regarding the third question, the Arizona Supreme Court confirmed that jury unanimity is required for specific drug identity in convictions under A.R.S. 13-3408, relating to drug possession. However, the court declined to address the question related to A.R.S. 13-3415, concerning drug paraphernalia. Following the Arizona court's decision, the cases of Jorge Romero-Millan and Marco Antonio Garcia-Paz were consolidated, with both petitions for review denied. Romero-Millan, who entered the U.S. unlawfully in 1984, pleaded guilty in 2014 to possessing drug paraphernalia under A.R.S. 13-3415. During his incarceration, removal proceedings were initiated against him based on his status as an alien without lawful admission and a conviction for a controlled substance offense. Initially conceding to the charges, he later retracted his concession following the Supreme Court's decision in Mellouli v. Lynch. An immigration judge found him ineligible for relief and ordered his removal, concluding that his conviction did not categorically qualify as a controlled substance offense under federal law due to discrepancies between Arizona's and federal drug lists.

The IJ determined that A.R.S. 13-3415 is divisible and, employing the modified categorical approach, concluded that Romero-Millan was convicted of a controlled substance offense. The BIA adopted this finding, dismissing Romero-Millan's appeal. Subsequently, Romero-Millan filed a timely petition for review. 

Ernesto Hernandez Cabanillas, a lawful permanent resident from Mexico since 2004, pled guilty in 2016 to possessing a narcotic drug for sale under A.R.S. 13-3408(A)(2). The government initiated removal proceedings against him as an alien convicted of a controlled substance offense under 8 U.S.C. 1227(a)(2)(B)(i). The IJ upheld the removal charge, concluding that A.R.S. 13-3408, although overbroad, is divisible concerning drug types, thereby affirming Hernandez Cabanillas's removability. The BIA dismissed his appeal, with one dissenting member arguing the government did not prove A.R.S. 13-3408's divisibility regarding drug type. Hernandez Cabanillas also filed a timely petition for review.

Jurisdiction is established under 8 U.S.C. 1252, which allows judicial review of final removal orders. However, both Romero-Millan's and Hernandez Cabanillas's orders stemmed from convictions potentially triggering jurisdiction-stripping under 1252(a)(2)(C). Romero-Millan was deemed inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(II), and Hernandez Cabanillas under 8 U.S.C. 1227(a)(2)(B)(i). Nonetheless, the BIA's analyses of divisibility are reviewable under 1252(a)(2)(D), as divisibility is a legal question. The Supreme Court's ruling in Guerrero-Lasprilla v. Barr clarified that the application of a legal standard to established facts constitutes a reviewable question of law. This rationale was reinforced in Lazo v. Wilkinson, where jurisdiction was exercised under 1252 regarding the divisibility of a California statute. The standard of review for the BIA's conclusions regarding removability and eligibility for discretionary relief is de novo, including the analysis of divisibility.

BIA's interpretation of federal immigration statutes typically receives deference, except for statutes it does not administer, such as Arizona's criminal statutes. The main issue in Romero-Millan's case is whether his drug paraphernalia conviction under A.R.S. 13-3415 qualifies as a controlled substance offense, making him ineligible for status adjustment under 8 U.S.C. 1182(a)(2)(A)(i)(II). Similarly, in Hernandez Cabanillas's case, the question is whether his drug possession conviction under A.R.S. 13-3408 is a controlled substance offense that leads to removal under 8 U.S.C. 1227(a)(2)(B)(i). The government must demonstrate that the Petitioners’ Arizona convictions relate to controlled substances as defined by federal law, bearing the burden of proof to establish removability by clear and convincing evidence.

To determine if an offense qualifies as a controlled substance violation, the government must link elements of the conviction to a drug defined under federal law, as clarified in Mellouli v. Lynch. The evaluation follows a three-step process established by the Supreme Court in Descamps v. United States and Taylor v. United States. The first step utilizes the categorical approach, focusing solely on the statutory definition of the crime without considering the petitioner’s conduct. Elements, defined as the necessary components for a conviction, must match between state and federal statutes. If the state statute's elements are broader than the federal law, it does not qualify as a categorical match. Conversely, if they are the same or narrower, the conviction imposes immigration consequences. In the discussed cases, it was determined that Arizona's statutes include substances not listed federally, indicating a lack of categorical match.

A conviction under Arizona statutes A.R.S. 13-3408 and A.R.S. 13-3415 does not categorically match federal law due to potential differences in the substances involved. As a result, the analysis proceeds to Step Two, where the court assesses whether the state law is "divisible," indicating that the statute presents alternative elements rather than merely alternative means of committing an offense. This determination requires examining both the statute and relevant case law. A disjunctive list in the statute does not automatically imply divisibility; instead, it must be shown that jurors must unanimously agree on the specific offense. If state law is unclear, courts may review the record of conviction to ascertain if the alternatives are elements, but if this does not clearly indicate divisibility, the statute is deemed indivisible. An indivisible statute cannot be considered a predicate offense under federal law. If the statute is divisible, Step Three involves applying the modified categorical approach, which allows for reviewing specific documents (e.g., charging documents or plea agreements) to clarify the basis of the prior conviction. This process aids in determining if the identified elements align with federal offense criteria.

The modified categorical approach is utilized to clarify the elements of a crime of conviction when a statute's disjunctive phrasing obscures them. It assesses whether conviction documents indicate substances listed as controlled under federal law. If established, the alien is deemed removable. The Supreme Court of Arizona determined that jury unanimity on the identity of a specific drug is necessary for a conviction under A.R.S. 13-3408 for possession of a drug for sale, emphasizing that drug identity is a key element due to varying penalties based on drug type. Consequently, A.R.S. 13-3408 is classified as divisible regarding drug type, supporting the IJ's application of the modified categorical approach in Hernandez Cabanillas's case, where the substance was confirmed to be cocaine. 

Regarding A.R.S. 13-3415, concerning drug paraphernalia, the Supreme Court of Arizona refrained from addressing this aspect of the certified question, citing a prior unappealed case and concerns about unintended consequences. The Ninth Circuit is tasked with determining whether jury unanimity is required under this statute based on existing Arizona law. The analysis suggests that the text and relevant case law support the government's position, leading to the conclusion that A.R.S. 13-3415 is also divisible by drug type. The statute criminalizes the use or possession of drug paraphernalia for various drug-related activities, with definitions of "drug" including narcotics, dangerous drugs, marijuana, and peyote as specified by the Arizona legislature.

A.R.S. 13-3415 does not clearly define whether the type of drug is an essential element of the offense, leading to ambiguous interpretations in Arizona case law regarding jury consensus on the specific drug involved in violations. In *State v. Lodge*, the court upheld a conviction without requiring jurors to specify which drug the paraphernalia related to, emphasizing that any violation of A.R.S. 13-3415(A) sufficed. Conversely, in *State v. Martinez*, the court indicated that possession of drug paraphernalia associated with multiple drugs could support multiple counts, suggesting that the drug type may be an essential element under A.R.S. 13-3415. The phrasing of "a drug" rather than "any drug" in the statute leans towards the conclusion that the specific drug type matters. This interpretation aligns with the reasoning in *State v. Gutierrez*, where the singular use of "a deadly weapon" implied that the legislature intended to treat offenses involving different weapons separately. Additionally, Arizona’s sentencing guidelines reflect the importance of the drug type, as certain substances like methamphetamine can lead to ineligibility for probation, reinforcing that the underlying substance of the conviction is significant. The U.S. Supreme Court's ruling in *Mathis* establishes that if different statutory alternatives imply varied punishments, they must be treated as elements of the offense.

In Lopez-Marroquin v. Garland, the argument that statutory alternatives should be considered elements rather than means gains strength when such alternatives lead to increased penalties. This is evidenced by the enhanced penalties for theft of specific vehicles, which indicates that the type of vehicle is an essential component of the crime. The case also references Dominguez, which supports the notion that the state has differentiated punishments for "delivery" versus "manufacture" of controlled substances, suggesting that these distinctions reflect elements of the offense. Arizona’s sentencing guidelines further illustrate this point, as they impose different penalties based on the type of drug involved, reinforcing the view that drug identity is a critical element under statute 13-3415. The Arizona Supreme Court echoed this perspective, affirming that drug-specific penalties indicate that drug identity is an element of narcotic offenses under statute 13-3408.

Additionally, jury instructions are considered persuasive when assessing divisibility. The Arizona pattern jury instructions for drug paraphernalia highlight the necessity for the jury to agree unanimously on the specific drug involved, reinforcing the notion that drug identity is an essential factual finding. The instructions’ notes imply that while certain verbs may be selected based on the facts, the identification of the drug is a required agreement among jurors. The interpretation of these jury instructions in Lopez-Marroquin, which allows for two statutory alternatives, contrasts with the singular requirement in this case, further supporting the argument that the alternatives are elements, not merely means.

California Criminal Jury Instructions (CALCRIM 1820) outline the requirements for proving guilt in cases involving unauthorized vehicle use, necessitating evidence that the defendant drove a vehicle without the owner's consent with the intent to deprive the owner of possession. In a related Arizona case, State v. Kelly, the court affirmed that drug paraphernalia possession requires proof of intent to use the paraphernalia for methamphetamine. The court suggested that the type of drug is a jury-unanimous element, supported by the Supreme Court's Mathis ruling, which indicated that specific drug references in jury instructions imply divisibility in statutes. Applying this reasoning, it was established that Romero-Millan's plea agreement explicitly identified cocaine, confirming it as the basis for his conviction under A.R.S. 13-3415. Consequently, the Board of Immigration Appeals (BIA) correctly employed a modified categorical approach, leading to the conclusion that Romero-Millan is ineligible for adjustment of status and inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(II). The petitions for review filed by Romero-Millan and Hernandez Cabanillas were denied, affirming the divisibility of the relevant Arizona statutes and the legitimacy of the removal orders.