DIKHTYAR , 28 I. & N. Dec. 214 ( 2021 )

Cite as 28 I&N Dec. 214 (BIA 2021) Interim Decision #4007
Matter of Mikhail Petrovich DIKHTYAR, Respondent
Decided January 22, 2021
U.S. Department of Justice
Executive Office for Immigration Review
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
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sunika Pawar, Assistant
Chief Counsel
BEFORE: Board Panel: HUNSUCKER and PETTY, Appellate Immigration Judges;
MORRIS, Temporary Appellate Immigration Judge.
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.
I. FACTUAL AND PROCEDURAL HISTORY
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 section
1
The respondent’s motion to accept a supplemental appellate brief is granted.
2
In the notice to appear, the DHS alleged that the respondent is a native and citizen of
the former Soviet Union. We take administrative notice that the Soviet Union no longer
exists. See 8 C.F.R. § 1003.1(d)(3)(iv) (2020) (providing that we may take administrative
notice of “commonly known facts”). However, the Immigration Judge terminated removal
proceedings before determining the respondent’s country of citizenship, and, in light of our
disposition, we need not reach this issue.
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237(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).
II. ANALYSIS
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.
3
We disagree with the respondent’s contention that the DHS waived its appellate
arguments regarding his removability under section 237(a)(2)(B)(i) by not raising these
arguments before the Immigration Judge. The DHS charged him with being removable
under this provision and submitted evidence in support of this charge. It properly
challenges on appeal the Immigration Judge’s determination that the respondent’s Utah
offense does not render him removable under section 237(a)(2)(B)(i) of the Act.
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At the time of the respondent’s conviction, section 58-37-8(2)(a) of the
Utah Code provided, in relevant part, that
It is unlawful:
(i) for any person knowingly and intentionally to possess or use a controlled
substance analog or a controlled substance . . . .
Sections 58-37-8(2)(b) and (d), in turn, provided that
(b) Any person convicted of violating Subsection (2)(a)(i) with respect to:
(i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree
felony; or
(ii) a substance classified in Schedule I or II, or a controlled substance analog, is
guilty of a class A misdemeanor on a first or second conviction, and on a third or
subsequent conviction is guilty of a third degree felony.
....
(d) Any person who violates Subsection (2)(a)(i) with respect to all other controlled
substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in
Section 58-37-4.2, or marijuana, is guilty of a class B misdemeanor. . . .
(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 (“If statutory alternatives carry
different punishments, then . . . they must be elements.”); 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
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(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
(concluding that “the schedule the substance is listed in—not the substance
itself—ultimately drives a court’s determination of . . . the appropriate
punishment. In other words, the schedule is the element the jury necessarily
has to find . . . .”). Nevertheless, since all of the substances listed in
4
For our purposes, sections 212(a)(2)(A)(i)(II) and 237(a)(2)(B)(i) of the Act are
materially identical. See Matter of Voss, 28 I&N Dec. 107, 108 n.3 (BIA 2020).
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schedule 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 (finding Arellano to be persuasive authority). 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 instructions and case law and
determined that “the schedule of the controlled substance is an element,
while the specific identity of the ‘substance listed in schedule . . . II’ is a
‘means’ to satisfy that element.” Id. at 1108; see also id. at 1107–10.
Because schedule II of Colorado’s controlled substances schedules listed a
controlled substance that was not listed in the CSA, the court held that the
alien’s conviction was not a predicate for his removal.
Here, we reach a different conclusion than the Immigration Judge. We
acknowledge the above case law from the Tenth Circuit interpreting
Colorado drug laws. However, after reviewing the language of section
58-37-8(2)(a)(i) of the Utah Code, relevant Utah jury instructions and case
law, as well as the respondent’s record of conviction, we conclude that the
identity of the specific controlled substance underlying a violation of section
58-37-8(2)(a)(i) is an “element” of that statute, rather than a mere “means”
of violating it. See id. at 1107–10 (looking to these resources in determining
the elements of a statute); Matter of P-B-B-, 28 I&N Dec. at 47–49
(examining these same resources and the alien’s record of conviction in
discerning the elements of a statute).
A. Statutory Language
The plain language of section 58-37-8(2)(a)(i) of the Utah Code metes
out different punishments depending on the circumstances underlying a
violation, including the identity of the controlled substance possessed. See
State v. Robinson, 254 P.3d 183, 189–90 (Utah 2011) (concluding that the
Utah Legislature intended to impose different penalties for violations of
section 58-37-8, depending on the type of controlled substance involved).
For example, an individual convicted of possessing marijuana, a
schedule I controlled substance under Utah law, 5 may receive different
5
See Utah Code Ann. § 58-37-4(2)(a)(iii)(S) (defining marijuana as a schedule I
controlled substance).
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punishments under this statute, depending on the amount of marijuana
possessed and the individual’s prior criminal history. If that individual had
been convicted of possessing 100 pounds or more of marijuana, his
conviction would be treated as a second degree felony under section
58-37-8(2)(b)(i) of the Utah Code. However, if this individual was convicted
of possessing less than that amount of marijuana, and it was his third or
subsequent offense, his conviction would be treated as a third degree felony.
See Utah Code Ann. § 58-37-8(2)(b)(ii). But if it was only his first or second
conviction, it would be treated as a class A misdemeanor. See id.; cf. State
v. Martinez-Castellanos, 440 P.3d 896, 905–06 (Utah Ct. App. 2019)
(vacating a third degree felony sentence for possession of hydrocodone under
section 58-37-8 and remanding for resentencing the offense as a class
A misdemeanor under section 58-37-8(2)(b)(ii)). Separately, we also note
that, under section 58-37-8(2)(d) of the Utah Code, a person is guilty of a
class B misdemeanor if he possessed any other controlled substance not
included under subsections (2)(b)(i) or (ii), including a substance listed in
section 58-37-4.2 (which, at the time of the respondent’s conviction listed
78 different substances), or marijuana.
Thus, the plain language of section 58-37-8 reflects that penalties for drug
offenses under this statute are not based simply on the schedule of the
controlled substance involved in an offense. Rather, Utah must prove, and a
jury must make findings regarding, a defendant’s criminal history and the
identity and the amount of the controlled substance possessed to determine
whether he was convicted of a second degree felony, third degree felony, a
class A misdemeanor, or a class B misdemeanor. We therefore conclude that
an element of section 58-37-8 is the identity of the specific controlled
substance involved in a violation of that statute. See Mathis, 136 S. Ct.
at 2256.
B. Jury Instructions
In addition to the statutory language, we rely on relevant Utah jury
instructions to determine whether the statute is divisible with respect to the
identity of the controlled substance involved in the respondent’s offense. See
id. at 2249 (providing that we may look to jury instructions to determine the
elements of a statute). The jury instructions for the respondent’s statute of
conviction indicate that the specific substance involved is an element of the
offense. These instructions provide, in relevant part:
(DEFENDANT’S NAME) is charged [in Count ___] with committing Possession of
a Controlled Substance [on or about (DATE)]. You cannot convict [him] [her] of
this offense unless, based on the evidence, you find beyond a reasonable doubt each
of the following elements:
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1. (DEFENDANT’S NAME);
2. Intentionally and knowingly;
3. Possessed (NAME OF CONTROLLED SUBSTANCE/COUNTERFEIT
SUBSTANCE), a schedule [I] [II] [III] [IV] [V] [controlled substance] [counterfeit
substance] [; and]
4. [The defense of ______ does not apply].
Model Utah Jury Instructions, Second Edition, CR1203 (emphasis added).
In State v. Mackin, No. 061401021, 2008 WL 4411683, at Instruction 4
(Utah Dist. Ct. 2008) (Jury Instruction), a Utah District Court replaced the
phrase “NAME OF CONTROLLED SUBTANCE/COUTERFEIT
SUBSTANCE” in these instructions with the name of the specific substance
underlying the charge—namely, “Methamphetamine, a Schedule II
controlled substance”—and identified this specific substance as one of the
“essential elements” that the jury had to “find beyond a reasonable doubt.” 6
Cf. State v. Nelson, 253 P.3d 1094, 1095 (Utah Ct. App. 2011) (specifying in
jury instructions relating to a charge of possession with intent to distribute
that the underlying substance was “Cocaine, a Schedule II controlled
substance”). Because these instructions require a jury to find the specific
substance underlying a violation of section 58-37-8(2)(a)(i) beyond a
reasonable doubt, they differ from the jury instructions for the Colorado
statute at issue in Johnson, 967 F.3d at 1109, which required only that the
jury find “(1) [t]hat the defendant, (2) in the State of Colorado, at or about
the date and place charged, (3) knowingly, (4) possessed a controlled
substance.”
C. Utah Case Law
Although we have found no Utah court opinion that directly answers
whether the identity of a particular controlled substance is an element or a
means, we find it significant that Utah “has prosecuted as separate offenses
a single act” involving the possession of “multiple controlled substances.”
Matter of Gonzalez Lemus, 27 I&N Dec. 612, 614 (BIA 2019). In State
6
The jury instructions in Mackin indicate that the jury may be instructed a second time
about the identity and schedule of the controlled substance possessed after they have found
all of the elements of the crime of possession of a controlled substance. See Mackin, 2008
WL 4411683, at Instruction 6 (reiterating under a subsequent instruction that
“Methamphetamine is a Schedule II controlled substance”). However, this additional
instruction does not detract from the fact that a jury must find beyond a reasonable doubt
the identity of the specific drug possessed, and its schedule, in order to sustain a conviction
under section 58-37-8(2)(a)(i). We are therefore not persuaded by the respondent’s
argument that this additional instruction renders the identity of the substance possessed a
mere “means” of violating the statute, rather than an “element” of the crime.
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v. Karren, 438 P.3d 18, 19–21 (Utah Ct. App. 2018), the Utah Court of
Appeals upheld a defendant’s conviction for two counts of possession of a
controlled substance under section 58-37-8(2)(a)(i) where he was arrested
after methamphetamine and marijuana were discovered in his backpack.
Similarly, in State v. Ashcraft, 349 P.3d 664, 667 (Utah 2015), the Supreme
Court of Utah upheld a conviction for six counts of possession with intent to
distribute, where each count related to a separate controlled substance. 7
These cases indicate that “‘the elements of proof required as to’ an offense
involving one drug ‘are not the same as those essential’ to proving an offense
involving a different drug.” Matter of P-B-B-, 28 I&N Dec. at 48 (quoting
Matter of Gonzalez Lemus, 27 I&N Dec. at 614–15). The respondent has not
explained how, given the prohibition against double jeopardy, a defendant
could be convicted of multiple counts of possession of a controlled substance
where the defendant committed a single act of possession involving separate
substances, if the identity of the specific controlled substance possessed was
simply an alternative means of committing the offense, rather than an
element of section 58-37-8(2)(a)(i). See id. at 48–49.
D. Record of Conviction
Finally, under Mathis, 136 S. Ct. at 2256–57, we may “peek” at the
respondent’s record of conviction “for the sole and limited purpose of
determining whether [the specific controlled substance is an] element[] of
the offense.” The respondent’s criminal information charged him with
violating section 58-37-8(2)(a)(i) for “knowingly and intentionally
possess[ing] or us[ing] a controlled substance analog or a controlled
substance, to-wit: methamphetamine, a Schedule II controlled substance.” 8
The fact that the indictment “referenc[es] one alternative [controlled
substance] to the exclusion of all others,” supports our conclusion that the
identity of the controlled substance is an element of section 58-37-8(2)(a)(i).
Id. at 2257 (stating that “an indictment . . . could indicate, by referencing one
alternative term to the exclusion of all others, that the statute contains a list
of elements, each one of which goes toward a separate crime”); see also
Matter of P-B-B-, 28 I&N Dec. at 49–50. The respondent’s guilty plea
likewise states that one of the “specific elements” of his offense was that he
7
Although Ashcraft dealt with a different controlled substance provision, namely, section
58-37-8(1)(a)(iii) of the Utah Code, we find it instructive because, like the respondent’s
statute of conviction, section 58-37-8(1) metes out different punishments depending on,
among other things, a defendant’s criminal history and the identity of the controlled
substance possessed with the intent to distribute. See Utah Code Ann. § 58-37-8(1)(b).
8
We may take administrative notice of the contents of the respondent’s record of
conviction. See, e.g., Matter of P-B-B-, 28 I&N Dec. at 49 n.8.
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“possessed methamphetamine.” See Mathis, 136 S. Ct. at 2249, 2258
(providing that we may rely on a plea agreement to determine a statute’s
elements). Accordingly, the respondent’s record of conviction, specifically
the relevant criminal information and guilty plea, reflects that the identity of
the specific controlled substance possessed in violation of section
58-37-8(2)(a)(i) is an element of that crime.
III. CONCLUSION
The statute is therefore divisible with respect to the identity of the specific
controlled substance the respondent possessed, and we may apply the
modified categorical approach. See Matter of P-B-B-, 28 I&N Dec. at 50.
As noted, the respondent’s record of conviction establishes that he was
convicted of possessing methamphetamine, a federally controlled substance
under 21 U.S.C. § 812, schedule III(a)(3) (2018). Thus, the respondent’s
conviction for possession of a controlled substance under section
58-37-8(2)(a)(i) renders him removable as charged under section
237(a)(2)(B)(i) of the Act. The Immigration Judge therefore erred when she
terminated his removal proceedings. Accordingly, the DHS’s appeal is
sustained, the removal proceedings are reinstated, and the record is remanded
to give the respondent an opportunity to apply for any relief for which he
may be eligible.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
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