In re Dikhtyar, Interim Decision #4007
| Decision Date | 22 January 2021 |
| Docket Number | Interim Decision #4007 |
| Citation | 28 I&N Dec. 214 |
| Parties | Matter of Mikhail Petrovich DIKHTYAR, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
Section 58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a controlled substance, is divisible with respect to the identity of the specific "controlled substance" involved in a violation of that statute.
FOR RESPONDENT: Tilman D. Jacobs, Esquire, Westminster, Colorado
HUNSUCKER, Appellate Immigration Judge:
In a decision dated January 16, 2020, an Immigration Judge terminated the removal proceedings against the respondent. The Department of Homeland Security ("DHS") has appealed from that decision. The respondent opposes the appeal.1 The appeal will be sustained, the removal proceedings will be reinstated, and the record will be remanded to the Immigration Judge.
The respondent is a lawful permanent resident of the United States.2 On April 12, 2019, he was convicted of possession of a controlled substance in violation of section 58-37-8(2)(a)(i) of the Utah Code, and he received a suspended sentence of 365 days of incarceration for this offense. Based on this conviction, the DHS charged him with removability under section237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2018), as an alien convicted of violating a law relating to a controlled substance.
The Immigration Judge terminated the respondent's removal proceedings after concluding that the DHS had not established that his Utah offense was a predicate for his removal under section 237(a)(2)(B)(i) of the Act. On appeal, the DHS challenges the Immigration Judge's conclusion and argues that the respondent's Utah drug conviction is one for a violation of a law relating to a controlled substance under the Act.3 Whether the respondent's State conviction renders him removable is a question of law, which we review de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020).
Section 237(a)(2)(B)(i) of the Act renders the respondent removable if he has been convicted of a "violation of . . . any law or regulation of a State . . . relating to a controlled substance," as defined in the Federal Controlled Substances Act ("CSA"). To determine whether the respondent's Utah drug offense renders him removable under this provision, we employ the "categorical approach" to determine whether the elements of his Utah offense match those of the "generic" Federal definition set forth at section 237(a)(2)(B)(i). Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). To categorically fit within this generic definition, the respondent's conviction must have necessarily involved, as an element, a substance listed under the CSA. See Mellouli v. Lynch, 135 S. Ct. 1980, 1991 (2015); Matter of P-B-B-, 28 I&N Dec. 43, 45-46 (BIA 2020).
However, if the respondent's State statute of conviction is categorically overbroad, we must consider whether it is divisible—that is, whether it "sets out one or more elements of the offense in the alternative." Descamps v. United States, 570 U.S. 254, 257 (2013); see also Johnson v. Barr, 967 F.3d 1103, 1107 (10th Cir. 2020). If the statute is divisible, we may employ a modified categorical approach, which permits us to examine the respondent's record of conviction to determine "what crime, with what elements, [he] was convicted of." Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); see also Johnson, 967 F.3d at 1107.
(Emphasis added.) Because the respondent was convicted of a class A misdemeanor, the Immigration Judge found that he was convicted of possessing a schedule I or II controlled substance, or analog, under section 58-37-8(2)(b)(ii).
It is undisputed that the respondent's conviction for a class A misdemeanor under sections 58-37-8(2)(a)(i) and (b)(ii) of the Utah Code does not categorically fit within the definition of a controlled substance violation under section 237(a)(2)(B)(i) of the Act because, at all relevant times, schedules I and II of the Utah controlled substances schedules criminalized the possession of substances that are not included in the CSA. See Johnson, 967 F.3d at 1106-07; Matter of P-B-B-, 28 I&N Dec. at 46. It is additionally undisputed that the statute of conviction is divisible, in part, because sections 58-37-8(2)(b) and (d) of the Utah Code, the relevant penalty provisions of the statute, mete out different punishments for violating section 58-37-8(2)(a)(i), depending on the circumstances underlying a particular violation. See Mathis, 136 S. Ct. at 2256 (); Matter of P-B-B-, 28 I&N Dec. at 47.
However, the parties disagree as to whether the Utah statute is divisible with respect to the identity of the particular controlled substance possessed in a violation of section 58-37-8(2)(a)(i). In other words, the issue in this case is whether the identity of the specific controlled substance involved in a violation of that provision is an "element" of that offense or merely an alternative "means" of committing the crime. Mathis, 136 S. Ct. at 2253(distinguishing between statutory "elements" and the "alternative means of fulfilling" one or more of those elements).
"Elements 'are the constituent parts of a crime's legal definition' that 'the prosecution must prove' and 'what the jury must find beyond a reasonable doubt to convict the defendant.'" Johnson, 967 F.3d at 1107 (quoting Mathis, 136 S. Ct. at 2248). "Means," by contrast, merely describe the various ways by which a defendant may "satisfy[] a single element." Id. (quoting Mathis, 136 S. Ct. at 2249, 2251).
The Immigration Judge found, and the respondent argues, that to establish a class A misdemeanor conviction under sections 58-37-8(2)(a)(i) and (b)(ii), the prosecution must prove only, and a jury need only find, that a defendant possessed a "controlled substance" under "Schedule I or II" of Utah's controlled substances schedules, or "a controlled substance analog" under these schedules—regardless of the specific substance possessed. In the Immigration Judge's view, these alternative schedules are alternative elements that render the statute divisible, but the identity of the specific substance listed under these schedules is merely an alternative "means" of satisfying these elements.
At the time of the respondent's conviction, schedule I of Utah's controlled substances schedules listed the substance etizolam, but the CSA did not. Compare Utah Code Ann. § 58-37-4(2)(a)(i)(FF) (West 2019), with 21 C.F.R. § 1308.11 (2019). Accordingly, the Immigration Judge found that the respondent's Utah statute of conviction was overbroad and, because it was indivisible with respect to the identity of the specific substance underlying his offense, his conviction under this statute did not render him removable under section 237(a)(2)(B)(i) of the Act.
In support of her conclusion, the Immigration Judge cited Arellano v. Barr, 784 F. App'x 609 (10th Cir. 2019). In that unpublished case, the court held that an alien's conviction for possession of a controlled substance listed in schedule V of Colorado's controlled substances schedules was a conviction for an offense relating to a controlled substance under section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2018).4 Because the alien's statute of conviction provided different punishments depending on what schedule the drug possessed was listed in, the court concluded that the five alternative schedules under Colorado law were alternative elements that rendered the statute divisible. See id. at 613 ). Nevertheless, since all of the substances listed inschedule V of Colorado's controlled substances schedules were listed under the CSA, the court concluded that the alien's offense was a controlled substance violation under the Act.
After the Immigration Judge rendered her decision, the United States Court of Appeals for the Tenth Circuit, in whose jurisdiction this case arises, favorably cited Arellano in a precedential decision. See Johnson, 967 F.3d at 1109 (). In that decision, the court concluded that an alien's conviction for possession of a schedule II controlled substance under a separate Colorado drug statute was not a conviction for a controlled substance violation under section 237(a)(2)(B)(i) of the Act. The court reached this conclusion after analyzing the text of the Colorado statute as well as relevant State jury...
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