Romero-Millan v. Garland
| Decision Date | 29 August 2022 |
| Docket Number | 16-73915,17-72893 |
| Parties | Jorge Romero-Millan, Petitioner, v. Merrick B. Garland,[*] Attorney General, Respondent. Ernesto Hernandez Cabanillas, Petitioner, v. Merrick B. Garland,* Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted March 6, 2020
Submission Withdrawn May 4, 2020
Resubmitted August 22, 2022 Phoenix, Arizona
On Petition for Review of Orders of the Board of Immigration Appeals Agency Nos. A077-138-666, A095-285-170 Gabriel G. Leyba (argued), Crossroads Law Group LLP, Phoenix Arizona, for Petitioner Jorge Romero-Millan.
Roberta Wilson (argued), Phoenix, Arizona, for Petitioner Ernesto Hernandez Cabanillas.
Imran Raza Zaidi (argued) and David J. Schor (argued), Trial Attorneys; Nehal H. Kamani, Attorney; Emily Anne Radford, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Before: Richard R. Clifton, John B. Owens, and Mark J. Bennett, Circuit Judges.
Denying separate petitions for review filed by Jorge Romero-Millan and Ernesto Hernandez Cabanillas from decisions of the Board of Immigration Appeals, the panel held that: 1) Arizona's drug possession statute, A.R.S. § 133408, and Arizona's possession of drug paraphernalia statute, A.R.S. § 13-3415, are divisible as to drug type; and 2) the BIA did not err in concluding that petitioners were convicted of controlled substance offenses that supported their orders of removal.
The BIA concluded that Romero-Millan was inadmissible and ineligible for adjustment of status based on his § 13-3415 conviction. Hernandez Cabanillas, who was a lawful permanent resident, was found removable based on his § 13-3408 conviction. For both petitioners, the agency applied the modified categorical approach to determine that their Arizona convictions were convictions for controlled substances under federal law. However, because Arizona's list of prohibited drugs is overbroad with respect to federal law, the panel previously certified three questions to the Supreme Court of Arizona: 1) Is A.R.S. § 13-3415 divisible as to drug type?; 2) Is A.R.S. § 13-3408 divisible as to drug type?; and 3) Put another way, is jury unanimity required as to which drug or drugs was involved in an offense under either § 13-3415 or § 13-3408?
The Supreme Court of Arizona ruled that it had improvidently accepted the first two questions because divisibility pertains solely to federal law, and no Arizona court had addressed the issue. On the third question, the Supreme Court of Arizona concluded that jury unanimity as to the identity of the drug involved was required for a conviction under § 13-3408. However, the court declined to answer that question as to § 13-3415, explaining that a prior state court of appeal decision containing a relevant discussion had not been appealed to it, and therefore, it was reticent to take a position given the possibility of unintended consequences that were not fully addressed by the parties in that case.
Although petitioners' removal orders were based on convictions that could trigger the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C), the panel explained that divisibility is purely a legal question, and therefore, is reviewable under § 1252(a)(2)(D), which exempts "constitutional claims or questions of law" from the jurisdiction-stripping provision. Moreover, the panel explained that the application of the modified categorical approach involves the application of a legal standard to "established facts," which the Supreme Court in Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062 (2020), held was a reviewable question of law.
Based on the Supreme Court of Arizona's holding that jury unanimity as to the identity of a specific drug is required for a conviction for drug possession under § 13-3408, the panel held that § 13-3408 is divisible as to drug type. Accordingly, the panel concluded that the agency did not err in by applying the modified categorical approach to examine Hernandez Cabanillas's record of conviction. Assessing the charging documents, plea colloquy, and plea agreement, the panel also concluded that the BIA did not err in determining that the drug underlying Hernandez Cabanillas's conviction was cocaine, a federally controlled substance.
The panel also held that possession of drug paraphernalia under § 13-3415 is divisible as to drug type. Noting that the Supreme Court of Arizona declined to answer the question of jury unanimity with respect to this statute, the panel concluded that the balance of the statutory text, Arizona case law, sentencing guidelines, jury instructions, and a peek at Romero-Millan's record of conviction favored the conclusion that § 13-341 is divisible as to drug type. Accordingly, the panel concluded that the BIA did not err in by applying the modified categorical approach to Romero-Millan's record of conviction. Looking to the information to which Romero-Millan pled guilty, the panel concluded that the BIA properly found that his conviction involved cocaine.
Petitioners Jorge Romero-Millan and Ernesto Hernandez Cabanillas are natives and citizens of Mexico who were ordered removed from this country. They petitioned separately for review of their final orders of removal. Those orders were based on determinations by immigration judges (IJ) affirmed by the Board of Immigration Appeals (BIA) that Petitioners' convictions under Arizona state law were convictions for controlled substance offenses as that term is used under federal law. We certified three state-law questions to the Supreme Court of Arizona, which accepted certification and issued a written opinion addressing each question. The petitions are now back before us, and we deny both petitions for review.
Underlying these cases is the fact that the list of "controlled substances" under Arizona law differs slightly from the list under federal law. As we stated in our order certifying questions to the Supreme Court of Arizona, and as we will explain at greater length below, at 15-16, "[t]here is no categorical match between the federal crime and the Arizona crimes because of a minor but critical difference in the types of drugs each statute prohibits." Romero-Millan v. Barr, 958 F.3d 844, 848 n.1 (9th Cir. 2020). Specifically, "[t]he Arizona statute lists benzylfentanyl and thenylfentanyl as prohibited narcotic drugs, A.R.S. § 13-3401(20)(n) &(mmmm), while the federal statute does not." Id. (citing 21 U.S.C. § 812 and 21 C.F.R. §§ 1308.11-15). Therefore, these cases turn on "whether A.R.S. § 13-3415 and § 13-3408 are divisible as to drug type." Id. at 848.
As noted, we certified three questions to the Supreme Court of Arizona:
Id. at 849; see also Ariz. Sup. Ct. R. 27.
The Supreme Court of Arizona exercised its discretionary authority to accept certification. See Ariz. Const. art. VI, § 5; A.R.S. § 12-1861; Romero-Millan v. Barr, 253 Ariz. 24, 507 P.3d 999, 1001 (2022). That court issued an opinion on April 19, 2022, responding to the certified questions, Romero-Millan, 507 P.3d at 1001, and on June 27, 2022, issued its formal mandate to this court, making the opinion final.
As to the first and second questions-whether Arizona's possession of drug paraphernalia statute (§ 13-3415) and drug possession statute (§ 13-3408) are divisible as to drug type, respectively-the Supreme Court of Arizona ruled: "Because the 'divisibility' of a criminal statute pertains solely to federal law, and no Arizona court has addressed the issue, we improvidently accepted [those] questions and now decline to answer them."[1] Id. at 1001. The court concluded as follows:
Under federal law, whether a criminal statute is divisible requires the court to determine if the statute "sets out one or more elements of the offense in the alternative" as opposed to listing alternative methods or means of committing the crime. However, the divisibility analysis the Ninth Circuit asks us to perform is not conducted under Arizona law. Indeed, no Arizona court has ever discussed the divisibility of a criminal statute. Neither of the first two certified questions raises questions under Arizona state law. Accordingly, we vacate the order accepting jurisdiction of those questions.
Id. at 1001-02 (citation omitted); see also A.R.S. § 12-1861 ().
As to the third question, whether a jury is required to reach unanimous agreement on the identity of the drug involved in the crime, the Supreme Court of Arizona answered in the affirmative as it relates to § 13-3408, the drug possession criminal statute. Romero-Millan, 507 P.3d at 1001. The court ruled that, with respect to § 13-3408, "jury unanimity regarding the identity of a specific drug is required for a conviction." Id. at 1003. The Arizona court declined to answer the question as to § 13-3415, the possession of drug paraphernalia statute, for reasons we will note below, at 19.
After the Arizona court issued its decision responding to our certified questions, we consolidated these two cases.[2]We deny both petitions for review.
Jorge Romero-Millan says that he...
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