Myers v. Sessions

• Decision Date: 25 September 2018
• Docket Number: No. 17-71416,17-71416
• Citation: 904 F.3d 1101
• Parties: Zaldy Arquitola MYERS, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

904 F.3d 1101

Zaldy Arquitola MYERS, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 17-71416

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2018 San Francisco, California

Filed September 25, 2018

Kelsey Gasseling (argued) and Andrew Snow (argued), Certified Law Students; Kari Hong (argued), Supervising Attorney; Ninth Circuit Appellate Project, Boston College Law School, Newton, Massachusetts; for Petitioner.

Sarah A. Byrd (argued) and Karen L. Melnik, Trial Attorneys, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX6-838.

Before: Kim McLane Wardlaw and Richard R. Clifton, Circuit Judges, and Gary S. Katzmann,^* Judge.

CLIFTON, Circuit Judge:

Zaldy Arquitola Myers petitions for review of an order of removal. The Board of Immigration Appeals ("BIA") concluded that Myers is removable based on his felony conviction under the Travel Act, 18 U.S.C. § 1952(a)(3), for traveling in interstate commerce to facilitate an unlawful activity. The unlawful activity facilitated by Myers was identified as "possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1)." The BIA held that Myers is removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he had been convicted of a controlled substance offense. Myers challenges that conclusion. Although not all convictions under the Travel Act represent violations related to controlled substances, meaning that the statute is not a categorical match to the removal statute, we conclude that the Travel Act is divisible in that respect. We further conclude that Myers's conviction qualifies as a controlled substance offense under the modified categorical approach. As to that issue, we deny the petition for review.

Myers also sought relief in the form of cancellation of removal under 8 U.S.C. § 1229b. The BIA concluded that Myers is ineligible for that relief because he had not been present in the United States prior to the initiation of the removal proceedings against him for the number of years required under the statute. That conclusion was not supported by substantial evidence. The statute states that the relevant time period ends "when the alien is served a notice to appear." 8 U.S.C. § 1229b(d)(1). The BIA used the date on which the notice to appear was issued, not the date when it was served on Myers. As a result, we grant the petition for review as to that issue and remand to the agency for consideration of Myers's claim for cancellation of removal.

I. Background

Myers is a citizen of the Philippines. He was admitted to the United States as a lawful permanent resident on September 20, 2006, when he was nineteen years old. In 2011 Myers was convicted, following his guilty plea, of one felony count of Interstate Travel in Aid of Racketeering in violation of 18 U.S.C. § 1952(a)(3). The district court sentenced him to sixty months of incarceration.

The Government commenced removal proceedings against Myers, ultimately alleging three alternative grounds for Myers's removability. The only ground relevant to our decision is the contention that Myers had been convicted of a controlled substance offense. Specifically, the Government alleged that Myers was removable based on his 2011 Travel Act conviction. The relevant subsection of the immigration statute provides for the removal of "[a]ny alien who at any time after admission 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 802 of Title 21), other than a single offense involvingpossession for one's own use of 30 grams or less of marijuana." 8 U.S.C. § 1227(a)(2)(B)(i).

The Immigration Judge ("IJ") sustained that charge. In a written order filed on February 2, 2016, the IJ noted that Myers did not dispute his criminal conviction for violation of the Travel Act. The IJ held that his conviction was based on a "conspiracy to possess with intent to distribute methamphetamine" and concluded that his conviction was related to a controlled substance. The IJ thus decided that Myers was removable as charged.

Myers also sought relief before the IJ in the form of cancellation of removal. The IJ concluded that Myers is ineligible for cancellation of removal, however, as one of the requirements for relief is that the applicant must have lawfully resided in the United States for at least seven years prior to the commencement of the removal proceedings. The IJ found that Myers was admitted to the United States on September 20, 2006, but that removal proceedings started on January 3, 2013, less than seven years later. The IJ therefore ordered Myers removed to the Philippines.

Myers appealed to the BIA, which affirmed the IJ's decision on May 3, 2017. The BIA noted that it used the categorical approach to determine that Myers's conviction rendered him removable "as an alien convicted of violating any law of the United States relating to a federally controlled substance." The BIA concluded that a conviction under the Travel Act could be analyzed under the modified categorical approach because the specific act that constituted the "unlawful activity" was an element of the Travel Act offense and that a jury was required to agree on a particular "unlawful activity" in order to find the defendant guilty. The BIA also stated that its reading of the Travel Act was supported by the superseding information to which Myers entered his guilty plea. As described by the BIA, that document specified "that he traveled in interstate commerce with the intent to promote one particular unlawful activity to the exclusion of all others, that is, possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1)" (internal quotation marks omitted).

II. Removability

Myers argues that a conviction under the Travel Act is not a controlled substance offense for purposes of 8 U.S.C. § 1227(a)(2)(B)(i). The Travel Act makes it a crime to travel in interstate or foreign commerce with intent, among other things, to "promote, manage, establish, carry on, or facilitate ... unlawful activity." 18 U.S.C. § 1952(a)(3). The statute lists the crimes that may constitute an "unlawful activity" under the Act. 18 U.S.C. § 1952(b). It includes violations of controlled substances laws but also includes a number of crimes other than drug offenses, including gambling, extortion, and arson.¹ Because a conviction under the Travel Act does not necessarily mean a conviction for activity relating to controlled substances, Myers contends that his conviction cannot justify his removal.

To determine whether Myers's Travel Act conviction is a controlled substance offense we use the categorical approach articulated by the Supreme Court in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). "The Taylor - Descamps framework lays out a three-step process for determining whether a specific conviction is a predicate offense mandating removal under the INA."² Medina-Lara v. Holder , 771 F.3d 1106, 1111–12 (9th Cir. 2014). First, "we ask whether the statute of conviction is a categorical match to the generic predicate offense; that is, if the statute of conviction criminalizes only as much (or less) conduct than the generic offense." Id. at 1112. If there is a categorical match, we do not proceed to the other steps "because the conviction categorically constitutes a predicate offense." Id. At step two, we ask if an overbroad statute is divisible. Id. If it is indivisible, we are done "because a conviction under an indivisible, overbroad statute can never serve as a predicate offense." Id. (emphasis in original ). If the statute is divisible we move on to step three and apply the modified categorical approach. Id.

A. Divisibility of the Travel Act

In this case it is agreed that the Travel Act is not a categorical match as it also covers unlawful activity unrelated to any controlled substances. The question is whether the statute is divisible. The BIA concluded that it is. Because divisibility is a purely legal question, we review the BIA's determination de novo. Almanza-Arenas v. Lynch , 815 F.3d 469, 477 (9th Cir. 2016) (en banc).

Divisibility depends on whether a statute's "listed items are elements or means." Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2256, 195 L.Ed.2d 604 (2016). If they are elements, the statute is divisible. If the alternative phrases are means, however, "the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution." Id.

"To resolve the question of whether statutory alternatives are either elements or means, a court looks first to the statute itself and then to the case law interpreting it." Sandoval v. Sessions , 866 F.3d 986, 993 (9th Cir. 2017). Statutory alternatives that carry different punishments are elements. Mathis , 136 S.Ct. at 2256 (citing Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ). On the other hand, if the statutory list offers only "illustrative examples, then it includes only a crime's means of commission." Id. (internal quotation marks omitted).

In some cases, neither the statute nor relevant case law answers the question, and a court may then look to so-called Shepard documents to help determine divisibility.³ Sandoval , 866 F.3d at 993 ; see also Mathis , 136 S.Ct. at 2256 ("And if state law fails to provide clear answers, federal judges have another place to look: the record of a prior conviction itself."). A court only reviews these documents to "discover what the prosecutor included as elements of the crime and to what elements the petitioner pleaded...