Aguirre-Zuniga v. Garland

• Decision Date: 16 June 2022
• Docket Number: 21-1201
• Citation: 37 F.4th 446
• Parties: Jonathan AGUIRRE-ZUNIGA, Petitioner, v. Merrick B. GARLAND, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

37 F.4th 446

Jonathan AGUIRRE-ZUNIGA, Petitioner,

v.Merrick B. GARLAND, Attorney General of the United States, Respondent.

No. 21-1201

United States Court of Appeals, Seventh Circuit.

Argued November 2, 2021

Decided June 16, 2022

Adam Gershenson, Attorney, Cooley LLP, San Diego, CA, Adam M. Katz, Attorney, Cooley LLP, Boston, MA, Charles Roth, Attorney, National Immigrant Justice Center, Chicago, IL, Andrew Daniel Barr, Attorney, Cooley LLP, Denver, CO, for Petitioner.

Imran Raza Zaidi, Trial Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Sykes, Chief Judge, Flaum and Jackson-Akiwumi, Circuit Judges.

Jackson-Akiwumi, Circuit Judge.

Jonathan Aguirre-Zuniga became a lawful permanent resident of the United States in 2007. Approximately ten years later, he pled guilty to delivery of methamphetamine in Indiana. The Department of Homeland Security concluded that his conviction was an aggravated felony subjecting him to deportation, and the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) agreed.

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 Indiana Code § 35-48-4-1.1 (the "Indiana Statute").¹ Approximately one year later, the Department of Homeland Security sought to remove him to Mexico. The agency asserted that his conviction qualified as an aggravated felony; therefore, he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). Aguirre-Zuniga filed a motion to terminate the proceedings. He argued that his conviction did not qualify as an aggravated felony because the Indiana statute was overbroad: it criminalized optical, positional, and geometric isomers of methamphetamine, while the corresponding federal offense criminalized only optical isomers.²

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. 8 U.S.C. § 1252(a)(2)(D). We review this issue de novo. Garcia-Martinez v. Barr , 921 F.3d 674, 681 (7th Cir. 2019). Because the BIA affirmed the IJ's decision but provided its own analysis, we review both decisions. Dominguez-Pulido v. Lynch , 821 F.3d 837, 841 (7th Cir. 2016).

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. 8 U.S.C. § 1227(a)(2)(A)(iii).

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 , ––– U.S. ––––, 137 S. Ct. 1562, 1568, 198 L.Ed.2d 22 (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 , ––– U.S. ––––, 140 S. Ct. 779, 783, 206 L.Ed.2d 81 (2020) (citation omitted); Mellouli v. Lynch , 575 U.S. 798, 808, 135 S.Ct. 1980, 192 L.Ed.2d 60 (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 ––– U.S. ––––, 141 S. Ct. 1239, 208 L.Ed.2d 630 (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 the "generic-offense" method and the "conduct-based" method. Ruth , 966 F.3d at 646 (citing Shular , 140 S. Ct. at 783 ). The generic-offense method applies to statutes invoking common crimes, like burglary, and requires courts "to come up with a ‘generic’ version of a crime—that is, the elements of ‘the offense as commonly understood.’ " Id. The conduct-based method, on the other hand, applies to statutes "that do not reference a certain offense, but rather ‘some other criterion’ as the measure for prior convictions." Id. For example, where a noncitizen is subject to removal for prior convictions involving fraud or deceit, courts "look[ ] to whether the prior offense's elements ‘necessarily entail fraudulent or deceitful conduct ’ as the appropriate measure." Id.

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, 127 S.Ct. 815, 166 L.Ed.2d 683 (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 backstop when a statute has indeterminate reach’ "); Swaby v. Yates , 847 F.3d 62, 66 (1st Cir. 2017) (realistic probability test is a "sensible caution against crediting speculative assertions...