Jorge Romero-Millan v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ROMERO-MILLAN, No. 16-73915
Petitioner,
Agency No.
v. A077-138-666
MERRICK B. GARLAND, * Attorney
General,
Respondent.
ERNESTO HERNANDEZ CABANILLAS, No. 17-72893
Petitioner,
Agency No.
v. A095-285-170
MERRICK B. GARLAND,* Attorney
General, OPINION
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
*
Merrick B. Garland is substituted for his predecessor, William P.
Barr, as Attorney General of the United States, pursuant to Fed. R. App.
P. 43(c)(2).
2 ROMERO-MILLAN V. GARLAND
Argued and Submitted March 6, 2020
Submission Withdrawn May 4, 2020
Resubmitted August 22, 2022
Phoenix, Arizona
Filed August 29, 2022
Before: Richard R. Clifton, John B. Owens, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Clifton
SUMMARY **
Immigration
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. § 13-
3408, 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
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ROMERO-MILLAN V. GARLAND 3
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
4 ROMERO-MILLAN V. GARLAND
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.
ROMERO-MILLAN V. GARLAND 5
COUNSEL
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.
OPINION
CLIFTON, Circuit Judge:
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
6 ROMERO-MILLAN V. GARLAND
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:
1. Is Arizona’s possession of drug
paraphernalia statute, A.R.S. § 13-3415,
divisible as to drug type?
2. Is Arizona’s drug possession statute,
A.R.S. § 13-3408, divisible as to drug
type?
3. Put another way, is jury unanimity (or
concurrence) required as to which drug or
drugs listed in A.R.S. § 13-3401(6), (19),
(20), or (23) was involved in an offense
under either statute?
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.
ROMERO-MILLAN V. GARLAND 7
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
1
We acknowledged in our certification order that the divisibility
“inquiry in the context of immigration cases like these is mostly a federal
concern, as it is a product of federal law and impacts cases in federal
court.” Romero-Millan, 958 F.3d at 850. “Nonetheless, we recognize[d]
that Arizona has an interest in this question because of the potential
impact on state cases” because “if A.R.S. § 13-3408 is divisible as to
drug type, and thus is a predicate offense for immigration removal
purposes, this requires the state to prove, in every case, what drug type a
defendant possessed . . . .” Id. The third question is the important one
under Arizona law, and the first two questions were included to put the
issue in full context. We understand the decision of the Arizona court to
decline to respond to the first two questions.
8 ROMERO-MILLAN V. GARLAND
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
(“The supreme court may answer questions of law . . . of this
state which may be determinative of the cause then pending
in the certifying court.”).
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.
2
Our certification order also concerned a third case involving
another citizen of Mexico, Marco Antonio Garcia-Paz, who had been
ordered removed from the United States. He had been convicted under
the same statute as Hernandez Cabanillas and presented a similar
challenge to his removal. See Romero-Millan, 958 F.3d at 847. Garcia-
Paz passed away in 2021, and his petition was thereafter dismissed by
ROMERO-MILLAN V. GARLAND 9
I. Background
A. Jorge Romero-Millan
Jorge Romero-Millan says that he entered the United
States in 1984. He did not have authority to do so and did
not have lawful status in this country. In 2014, Romero-
Millan pled guilty to “Count 3 of the Information:
POSSESSION OR USE OF DRUG PARAPHERNALIA.”
Count 3 states, “JORGE MILLAN ROMERO [] used or
possessed with intent to use, cocaine drug paraphernalia to
plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze,
pack, repack, store, contain, conceal, inject, ingest, inhale or
otherwise introduce into the human body an illegal drug, in
violation of A.R.S. § 13-3415.” Based on this plea
agreement, he was convicted of possessing or using drug
paraphernalia in violation of § 13-3415.
While he was serving his sentence, the federal
government, through the Department of Homeland Security,
initiated removal proceedings against him and served him
with a Notice to Appear. The government alleged that he
qualified as an alien present in the United States without
admission or parole under 8 U.S.C. § 1182(a)(6)(A)(i), and
as an alien convicted of a controlled substance offense under
§ 1182(a)(2)(A)(i)(II). At the original removal hearing, he
conceded both charges of removal. After the Supreme Court
issued Mellouli v. Lynch, 575 U.S. 798 (2015), however, he
this court. The Arizona court noted his passing in its opinion. Romero-
Millan, 507 P.3d at 1001 n.2 (2022).
10 ROMERO-MILLAN V. GARLAND
withdrew his concession on the second charge of
removability. 3
The IJ issued a decision finding Romero-Millan
ineligible for any relief and ordering his removal to Mexico.
The government’s second charge—for removability as an
alien convicted of a controlled substance offense—served as
the basis for finding Romero-Millan statutorily ineligible for
adjustment of status, a form of relief he had requested.
Because the Arizona list of controlled substances includes
substances not on the comparable federal list, as noted
above, at 5–6, the IJ determined that Romero-Millan’s
conviction under § 13-3415 did not categorically qualify as
a conviction for a controlled substance offense under federal
immigration law. The IJ also concluded, however, that § 13-
3415 is divisible, a concept we discuss below, at15–17.
Using the modified categorical approach, also discussed
3
In Mellouli, the Supreme Court held that in order to demonstrate
that an offense is related to a controlled substance and therefore triggers
removability, “the Government must connect an element of the alien’s
conviction to a drug ‘defined in [21 U.S.C. § 802].’” 575 U.S. at 813
(quoting 8 U.S.C. § 1227(a)(2)(B)(i) (authorizing the removal of an alien
“convicted of a violation of . . . 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)”)). Specifically, the Court reversed
the judgment of the Eighth Circuit denying Mellouli’s petition for review
concerning his removal based on his conviction under Kansas’s drug
paraphernalia statute, which references a list of controlled substances
that is broader than the list of federally-controlled substances under
§ 802. Id. at 802–04. The Court interpreted the text of § 1227(a)(2)(B)(i)
as limiting the meaning of “controlled substances” for removability
purposes to those listed under § 802. Id. at 813. The Court reasoned that
there was no basis for distinguishing drug paraphernalia offenses from
drug possession and distribution offenses because all of those drug
offenses only trigger removability if there is a direct link between an
element of the offense of conviction and a specific, federally-controlled
substance. Id.
ROMERO-MILLAN V. GARLAND 11
below, at 17–18, the IJ found that Romero-Millan was
convicted of a controlled substance offense. The BIA
adopted and affirmed this decision and dismissed his appeal.
Romero-Millan timely filed a petition for review. 4
B. Ernesto Hernandez Cabanillas
Ernesto Hernandez Cabanillas, a native and citizen of
Mexico, has been a lawful permanent resident of the United
States since 2004. In 2016, he pled guilty to possessing a
narcotic drug for sale in violation of A.R.S. § 13-
3408(A)(2). 5 The government charged him as removable as
an alien convicted of a controlled substance offense under
8 U.S.C. § 1227(a)(2)(B)(i).
The IJ sustained the government’s charge of
removability. The IJ found that Hernandez Cabanillas’s
conviction related to a federally controlled substance
because § 13-3408, while overbroad, was divisible as to drug
type. The IJ concluded by applying the modified categorical
approach that he was removable and entered an order of
removal. Hernandez Cabanillas appealed to the BIA, which
4
Romero-Millan’s appeal does not challenge the BIA’s affirmance
of the IJ’s conclusion finding him “ineligible for a waiver of
inadmissibility under [8 U.S.C. § 1182(h)] because the drug underlying
his controlled substance-related conviction was cocaine[,]” so we decline
to address that issue. See 8 U.S.C. § 1182(h)(1)(A) (stating that a waiver
for the ground of inadmissibility due to a conviction of a controlled
substance offense exists if the conviction “relates to a single offense of
simple possession of 30 grams or less of marijuana”).
5
The other sections of the Arizona criminal code under which
Hernandez Cabanillas was charged are not separate offenses. Section 13-
3401 is the “Definitions” section of Arizona’s drug offenses chapter;
§ 3418 describes how drug convictions render persons ineligible for
public benefits; and §§ 701, 702, and 801 relate to sentencing.
12 ROMERO-MILLAN V. GARLAND
dismissed his appeal in a decision by a three-member panel,
with one member dissenting on the ground that the
government had failed to meet its burden to establish that
§ 13-3408 was divisible as to drug type. Hernandez
Cabanillas timely filed a petition for review.
II. Jurisdiction and Standard of Review
We have jurisdiction under 8 U.S.C. § 1252. Section
1252(a) generally provides for judicial review of final orders
of removal. However, both Romero-Millan’s and Hernandez
Cabanillas’s final orders of removal were based on
convictions for offenses that could trigger a jurisdiction-
stripping provision, § 1252(a)(2)(C), which states: “[E]xcept
as provided in subparagraph (D), no court shall have
jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed a
criminal offense covered in section 1182(a)(2) or
1227(a)(2)(A)(iii), (B), (C), or (D) of this title . . . .”
Romero-Millan was ordered to be removed after being found
ineligible for adjustment of status and inadmissible as an
alien convicted of a controlled substance offense under
§ 1182(a)(2)(A)(i)(II). Hernandez Cabanillas was ordered to
be removed after being charged as removable as an alien
convicted of a controlled substance offense under
§ 1227(a)(2)(B)(i).
Notwithstanding § 1252(a)(2)(C), the BIA’s divisibility
analyses in both of these cases are reviewable under
§ 1252(a)(2)(D), which exempts “constitutional claims or
questions of law” from that jurisdiction-stripping provision,
because divisibility is a purely legal issue. Moreover, the
BIA’s application of the modified categorical approach in
both of these cases involves the application of a legal
standard to “established facts,” which the Supreme Court in
Guerrero-Lasprilla v. Barr held was a reviewable question
ROMERO-MILLAN V. GARLAND 13
of law for the purposes of applying § 1252(a)(2)(D)’s
exemption to the jurisdiction-stripping provision. 140 S. Ct.
1062, 1067 (2020). Guerrero-Lasprilla held that “the phrase
‘questions of law’ in [§ 1252(a)(2)(D)] includes the
application of a legal standard to undisputed or established
facts” in addition to purely legal questions. Id. Therefore, as
we recently concluded in a case involving divisibility and the
modified categorical approach, we have jurisdiction over
these cases under § 1252. See Lazo v. Wilkinson, 989 F.3d
705, 714 (9th Cir. 2021) (exercising jurisdiction under
§ 1252 to deny a petition for review upon holding that a
California statute regarding possession of a controlled
substance is divisible as to controlled substance and that
petitioner’s conviction documents unambiguously
established his conviction was a violation of law “relating to
a controlled substance” for removal purposes under 8 U.S.C.
§ 1227(a)(2)(B)(i)).
We review de novo the BIA’s conclusions that non-
citizens are “removable and ineligible for discretionary
relief.” Valdez v. Garland, 28 F.4th 72, 76 (9th Cir. 2022);
see also Lopez-Marroquin v. Garland, 9 F.4th 1067, 1070
(9th Cir. 2021) (“Divisibility, like element identification, is
reviewed de novo.”). While the BIA’s interpretation of
federal immigration statutes is often entitled to deference,
see Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184
(9th Cir. 2011), no deference is owed to the BIA’s
interpretation of statutes that it does not administer,
including Arizona’s criminal statutes, see Medina-Lara v.
Holder, 771 F.3d 1106, 1117 (9th Cir. 2014).
III. Discussion
The key issue in Romero-Millan’s case is whether his
drug paraphernalia conviction under A.R.S. § 13-3415 is a
conviction for a controlled substance offense that renders
14 ROMERO-MILLAN V. GARLAND
him categorically ineligible for adjustment of status and
inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) as an
“alien convicted of, or who admits having committed, or
who admits committing acts which constitute the essential
elements of . . . a violation of . . . any law or regulation of a
State . . . relating to a controlled substance (as defined in
section 802 of Title 21).”
The key issue in Hernandez Cabanillas’s case is whether
his drug possession conviction under A.R.S. § 13-34081 is a
conviction for a controlled substance offense that makes him
removable under 8 U.S.C. § 1227(a)(2)(B)(i), which renders
removable “[a]ny alien who at any time after admission has
been convicted of a violation of . . . any law or regulation of
a State . . . relating to a controlled substance (as defined in
section 802 of Title 21).”
In both cases, the government must show that
Petitioners’ Arizona state law convictions are related to a
controlled substance under federal law. See Young Sun Shin
v. Mukasey, 547 F.3d 1019, 1024 (9th Cir. 2008)
(recognizing that the government bears the initial burden of
establishing removability by clear and convincing evidence).
In Mellouli v. Lynch, the Supreme Court clarified that to
establish that an offense is related to a controlled substance,
“the Government must connect an element of the alien’s
conviction to a drug ‘defined in [§ 802].’” 575 U.S. at 813
(emphasis added). We determine whether convictions are for
controlled substance offenses by applying the three-step
process established by the Supreme Court in Descamps v.
United States, 570 U.S. 254 (2013), and Taylor v. United
States, 495 U.S. 575 (1990).
ROMERO-MILLAN V. GARLAND 15
A. The Three-Step Process
At Step One, “we employ ‘the categorical approach, [in
which] we examine only the statutory definition of the crime
to determine whether the state statute of conviction renders
an alien removable under the statute of removal, without
looking to the actual conduct underlying the petitioner’s
offense.’” Villavicencio v. Sessions, 904 F.3d 658, 664 (9th
Cir. 2018) (alteration in original) (quoting Ragasa v. Holder,
752 F.3d 1173, 1176 (9th Cir. 2014)). Rather than looking to
the underlying conduct, the categorical approach requires us
to look to the elements of the two offenses. Id. Elements are
“the constituent parts of a crime’s legal definition—the
things the prosecution must prove to sustain a conviction,”
“what the jury must find beyond a reasonable doubt to
convict,” and “what the defendant necessarily admits when
he pleads guilty.” Mathis v. United States, 579 U.S. 500, 504
(2016) (internal quotation marks and citations omitted).
“[I]f the categorical approach reveals that the elements
of the state . . . crime are broader than the elements of the
federal offense, then the state crime is not a categorical
match.” Villavicencio, 904 F.3d at 664 (emphasis removed);
see also Descamps, 570 U.S. at 261 (“The key, we
emphasized, is elements, not facts.”). On the other hand,
“[w]hen the elements of the state offense are the same as, or
narrower than, those of the [federal] offense, the petitioner’s
conviction is a categorical match” and thus imposes
immigration-related consequences. Lopez-Marroquin,
9 F.4th at 1070.
In these cases, as we concluded in our certification order
and detailed above, at 5–6, there is not a categorical match
between the federal crime and the Arizona crimes because
the Arizona statute lists two substances, benzylfentanyl and
thenylfentanyl, as prohibited narcotic drugs that are not
16 ROMERO-MILLAN V. GARLAND
included on the federal list. Because a conviction under
either of the Arizona state statutes could be based on a
substance that is not a controlled substance under federal
law, there is no categorical match for immigration law
purposes between the federal statute and either § 13-3408 or
§ 13-3415 at Step One.
If the statute is not a categorical match, the inquiry
proceeds to Step Two, at which point the court determines
whether the offense is “divisible”—meaning whether the
state law “sets out one or more elements of the offense in the
alternative” as opposed to listing alternative means of
committing the crime. Descamps, 570 U.S. at 257 (emphasis
added). We determine whether a given crime under state law
involves alternative elements or alternative means by
“look[ing] first to the statute itself and then to the case law
interpreting it.” Sandoval v. Sessions, 866 F.3d 986, 993 (9th
Cir. 2017); see also Mathis, 579 U.S. at 517–18 (stating that
courts must look to authoritative sources of state law such as
state court decisions and the wording of the state statute in
question when analyzing the statute’s divisibility).
To be clear, the presence of a disjunctive list in a statute
is not dispositive of the statute’s divisibility. We have
interpreted the Supreme Court’s ruling in Mathis as
“instruct[ing] courts not to assume that a statute lists
alternative elements and defines multiple crimes simply
because it contains a disjunctive list.” United States v.
Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017) (en
banc).
A state statute contains alternative elements and not
merely alternative means if a jury has to “unanimously agree
that [the defendant] committed a particular substantive
offense contained within the disjunctively worded statute.”
Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014)
ROMERO-MILLAN V. GARLAND 17
(emphasis added). “If ‘state law fails to provide clear
answers,’ courts may take a ‘peek’ at the record of
conviction for the ‘sole and limited purpose of determining
whether the listed items are elements of the offense’”;
however, “[i]f such records do not ‘plainly’ demonstrate that
the alternatives are elements rather than means, the statute is
indivisible.” Lopez-Marroquin, 9 F.4th at 1071 (quoting
Mathis, 579 U.S. at 518–19).
In these cases, there is “no categorical match” at Step
One between the federal statute and the Arizona statutes
given the “difference in the types of drugs each statute
prohibits,” so these cases turn on Step Two: “whether A.R.S.
§ 13-3415 and § 13-3408 are divisible as to drug type.”
Romero-Millan, 958 F.3d at 848 & n.1. The key legal
question is “whether a jury must agree, as a matter of law,
on what drug the defendant possessed.” Id. at 848.
If the statute is not divisible, our analysis stops and the
state law conviction cannot be held to be related to a
controlled substance under federal law. See Medina-Lara,
771 F.3d at 1112 (“[A] conviction under an indivisible,
overbroad statute can never serve as a predicate offense.”).
If the statute is divisible, at Step Three, we apply the
modified categorical approach, discussed below, at 18 and
26–27, which involves “consult[ing] a limited class of
documents . . . to determine which alternative formed the
basis of the defendant’s prior conviction.” Descamps,
570 U.S. at 257. The documents we may inspect “include
‘the charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant,
or . . . some comparable judicial record of this information.’”
United States v. Marcia-Acosta, 780 F.3d 1244, 1250 (9th
Cir. 2015) (alteration in original) (quoting Shepard v. United
18 ROMERO-MILLAN V. GARLAND
States, 544 U.S. 13, 26 (2005)). After consulting these
documents and “[h]aving identified the underlying offense
of conviction, we may then determine whether those
elements are a match to the generic federal offense.”
Dominguez v. Barr, 975 F.3d 725, 735 (9th Cir. 2020) (citing
Rendon, 764 F.3d at 1083); Mathis, 579 U.S. at 513 (“[T]he
modified [categorical] approach serves—and serves
solely—as a tool to identify the elements of the crime of
conviction when a statute’s disjunctive phrasing renders one
(or more) of them opaque.”). In these cases, the question is
whether the documents establish that the convictions were
based on substances that are on the federal list. If, by
applying the modified categorical approach, it is determined
that the state law conviction is related to a controlled
substance under federal law, the alien is removable.
B. Section 13-3408, Possession of a Drug for Sale
The Supreme Court of Arizona, in answering the third
certified question, held that jury unanimity regarding the
identity of a specific drug is required for a conviction under
§ 13-3408 for possession of a drug for sale. Romero-Millan,
507 P.3d at 1001–04. The court found particularly
instructive the fact that “Arizona’s drug-specific penalties
illustrate that drug identity is an element of a narcotic drug
offense” because “[t]he sentencing scheme for § 13-3408
provides different punishments for different drugs
depending on the particular threshold amount alleged by the
state.” Id. at 1003.
Based on the Supreme Court of Arizona’s answer, we
hold that § 13-3408 is divisible as to drug type. The IJ did
not err by applying the modified categorical approach to
examine the underlying record of conviction. The charging
documents, the plea colloquy, and the plea agreement
establish that the substance upon which the conviction of
ROMERO-MILLAN V. GARLAND 19
Hernandez Cabanillas was based was cocaine, a substance
on the federal list. The BIA did not err in concluding that the
drug type underlying his conviction was cocaine. 6
C. Section 13-3415, Use of or Possession with Intent to
Use Drug Paraphernalia
The Supreme Court of Arizona declined to answer the
portion of the third certified question that pertained to
Arizona’s drug paraphernalia statute, § 13-3415. Romero-
Millan, 507 P.3d at 1002. It noted that a prior state court of
appeal decision that contained a relevant discussion had not
been appealed to or reviewed by it. Id. (citing State v. Soza,
249 Ariz. 13, 464 P.3d 696 (Ct. App. 2020)). The court was
“reticent” to take a position on the issue given the possibility
of “unintended consequences that were not fully addressed
by the parties” in that case and would “prefer to resolve the
issue . . . in the context of a case that directly raises the
issue.” Id. We appreciate that concern, which also illustrates
the reason for our certification, as it recognizes the potential
impact of answers to the certified questions on an important
question of Arizona state law.
As we noted as a possibility in our certification order,
and as the Supreme Court of Arizona requested after
declining to answer the third certified question as it pertains
to § 13-3415, “we will resolve these questions following our
best understanding of Arizona law.” Romero-Millan,
6
We reject the argument made in Hernandez Cabanillas’s reply brief
that the decision of the Supreme Court in Pereira v. Sessions, 138 S. Ct.
2105 (2018), divests us of jurisdiction over this case. Pereira’s holding
is limited to the narrow context of the stop-time rule, which is not at issue
in this case. See id. at 2110; see also United States v. Bastide-Hernandez,
39 F.4th 1187, 1193 (9th Cir. 2022) (en banc); Aguilar Fermin v. Barr,
958 F.3d 887, 895 (9th Cir. 2020).
20 ROMERO-MILLAN V. GARLAND
958 F.3d at 850; see also Romero-Millan, 507 P.3d at 1002
(“[T]he Ninth Circuit should discern whether jury unanimity
regarding the identity of a specific drug is required under
Arizona’s possession of drug paraphernalia statute based on
existing Arizona law.” (citing Kaiser v. Cascade Cap., LLC,
989 F.3d 1127, 1131–32 (9th Cir. 2021))).
We conclude that the balance of the statutory text,
Arizona case law, and the record of conviction favors the
government’s argument and, therefore, we hold that § 13-
3415 is divisible as to drug type. 7
We start with the text of the statute. Section 13-3415(A)
states:
[I]t is unlawful for any person to use, or to
possess with intent to use, drug paraphernalia
to plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack,
store, contain, conceal, inject, ingest, inhale
or otherwise introduce into the human body a
drug in violation of this chapter. Any person
who violates this subsection is guilty of a
class 6 felony.
Section 13-3415(F) defines a drug as “any narcotic drug,
dangerous drug, marijuana, or peyote.” The terms “narcotic
drug” and “dangerous drug” are defined through lists of
substances determined by the Arizona state legislature to be
7
To be clear, this remains a question of state law as to which the
Supreme Court of Arizona remains the ultimate authority. Should it later
decide the underlying question differently, such as by deciding that jury
unanimity as to drug type was not required for a conviction under § 13-
3415, it is that court’s decision that must be followed.
ROMERO-MILLAN V. GARLAND 21
drugs. A.R.S. § 13-3401(6), (20). On its face, the language
of § 13-3415 does not specify whether the type of drug
underlying the conviction is an element of the offense.
Similarly, Arizona case law does not establish whether a
jury must agree on which drug was involved in a violation
of § 13-3415 or may simply agree that “a drug” on the state-
law list of drugs was involved. Decisions of the state court
of appeals arguably point in different directions. State v.
Lodge, No. 2 CA-CR 2014-0110, 2015 WL 164070, at *6
(Ariz. Ct. App. Jan. 14, 2015), upheld a conviction under
§ 13-3415 without the paraphernalia in question being
connected to a specific drug, holding that a jury need not
conclude which drug was involved and that “[a]ll that is
required is that the state establish some use in violation of
§ 13-3415(A).” In Lodge, the defendant was charged with
one count of possession of drug paraphernalia, which
included paraphernalia for both marijuana and
methamphetamine. Id. The Lodge court found persuasive the
defendant’s argument that, “taken as a whole, [the
indictment] raises the possibility that some jurors could
determine that one item of paraphernalia was used to violate
one provision of chapter 34 and other jurors that it could find
the same item was used to violate another.” Id. (alteration in
original).
On the other hand, in State v. Martinez, No. 2 CA-CR
2016-0039, 2017 WL 4403141, at *1 (Ariz. Ct. App. Oct. 3,
2017), the court upheld a conviction for two counts of
possession of drug paraphernalia under § 13-3415 based on
the defendant’s possession of a single scale with remnants of
two drugs (methamphetamine and heroin) found on it. The
fact that Martinez allowed one scale to result in two counts
of possession of drug paraphernalia suggests that the
22 ROMERO-MILLAN V. GARLAND
paraphernalia must be attached to a specific drug, which is
thus an element of the offense under § 13-3415.
The statute’s use of the phrase “a drug” as opposed to
“any drug” supports, but does not require coming to, the
conclusion that drug type is an element of § 13-3415. State
v. Gutierrez, 240 Ariz. 460, 466–67, 381 P.3d 254, 260–61
(Ct. App. 2016), ascribed meaning to this phrasing, albeit in
the context of a different statute that criminalized “[u]sing or
possessing a deadly weapon during the commission of
[some] felony offense[s].” Id. at 259 (quoting A.R.S. § 13-
3102(A)(8)). In Gutierrez, the court interpreted the fact that
the statute “is written in the explicit singular, using the
phrase ‘a deadly weapon’ (not ‘any deadly weapon’)” as
supporting the conclusion that the Arizona state legislature
intended to authorize prosecution for multiple offenses for
each deadly weapon used or possessed in commission of a
qualifying felony offense. Id. at 260. Our court has relied on
similar reasoning to hold that the language of 21 U.S.C.
§ 841 (criminalizing, inter alia, the “manufactur[ing],
distribut[ing[, or dispens[ing], or possess[ing] with intent to
manufacture, distribute, or dispense, a controlled
substance”) showed that Congress “intended to treat
different controlled substances as separate offenses” because
§ 841(a)(1) “criminalizes the possession of ‘a controlled
substance,’ not possession of ‘a controlled substance or
group of controlled substances.’” United States v. Vargas-
Castillo, 329 F.3d 715, 720 (9th Cir. 2003) (emphasis added)
(citation omitted).
We also consider as persuasive authority Arizona’s
sentencing guidelines and pattern jury instructions. The
Arizona sentencing guidelines provide that “any person who
is convicted of the personal possession or use of a controlled
substance or drug paraphernalia is eligible for probation,”
ROMERO-MILLAN V. GARLAND 23
A.R.S. § 13-901.01(A), but establish an exception for those
who were “convicted of the personal possession or use of a
controlled substance or drug paraphernalia and the offense
involved methamphetamine,” id. § 13-901.01(H)(4). These
sentencing guidelines indicate that the substance underlying
the conviction matters because it can result in a defendant
being rendered categorically ineligible for probation. The
U.S. Supreme Court has previously stated that “[i]f statutory
alternatives carry different punishments, then under
Apprendi they must be elements.” Mathis, 579 U.S. at 518.
In Lopez-Marroquin v. Garland, we recognized that the
argument that statutory alternatives are elements rather than
means is strengthened if those alternatives result in enhanced
penalties. See 9 F.4th at 1072 (noting as supporting evidence
for determining that the specific vehicle type is an element
of a crime that “the penalties are enhanced for theft of certain
vehicles (an ambulance, a marked law enforcement vehicle,
or a vehicle modified for the use of disabled persons)” (citing
Cal. Veh. Code § 10851(b))); see also Dominguez, 975 F.3d
at 736–37 (citing as support for considering statutory
alternatives—“delivery” and “manufacture” of a controlled
substance—to be elements, rather than means, the fact that
state courts recognized that, “under some circumstances, the
[state] legislature has chosen to punish delivery of a
controlled substance less than it has chosen to punish
manufacture” (quoting State v. Tellez, 14 P.3d 78, 80–81
(Or. Ct. App. 2000))).
Arizona’s sentencing guidelines establish that violations
of the same statute that involve different types of drugs (i.e.,
methamphetamine as opposed to other drugs) may result in
different punishments. These guidelines support the
argument that drug type is an element of the offense under
§ 13-3415. The Supreme Court of Arizona applied a similar
approach in its response to our certification order regarding
24 ROMERO-MILLAN V. GARLAND
a conviction under the drug possession statute, § 13-3408.
The court concluded that “Arizona’s drug-specific penalties
illustrate that drug identity is an element of a narcotic drug
offense” because “[t]he sentencing scheme for § 13-3408
provides different punishments for different drugs
depending on the particular threshold amount alleged by the
state.” Romero-Millan, 507 P.3d at 1003. Arizona’s
sentencing guidelines illustrate the same difference for
violations of § 13-3415 related to methamphetamine versus
other drugs.
We also consider jury instructions as persuasive
authority when analyzing divisibility. See Lopez-Marroquin,
9 F.4th at 1073; see also Martinez-Lopez, 864 F.3d at 1041
(finding model jury instructions persuasive in conducting an
elements-versus-means analysis of statutory alternatives).
The Arizona pattern jury instructions for a violation of § 13-
3415 state:
“Drug paraphernalia” means all equipment,
products and materials of any kind which are
used, intended for use or designed for use in
[planting] [propagating] [cultivating]
[growing] [harvesting] [manufacturing]
[compounding] [converting] [producing]
[processing] [preparing] [testing] [analyzing]
[packaging] [repackaging] [storing]
[containing] [concealing] [injecting]
[ingesting] [inhaling] or otherwise
introducing (name of drug) into the human
body.
34.15 − Possession of Drug Paraphernalia, Revised Arizona
Jury Instructions (Criminal) 5th, https://www.azbar.org/me
dia/jl5lzdpl/2019-raji-criminal-5th-ed.pdf.
ROMERO-MILLAN V. GARLAND 25
The notes following the pattern jury instructions state
that the language in brackets should be used “as appropriate
to the facts” but do not provide instructions regarding what
should be done with the language in parentheses or what
underlining signifies. Id. Although the meaning is somewhat
unclear, comparing the notes’ instructions for the options in
brackets versus the “name of drug” underlined and in
parentheses suggests that while a court should select an
appropriate verb from the options in brackets, the “name of
drug” should be included as a necessary factual finding on
which the jury must unanimously agree. See Martinez-
Lopez, 864 F.3d at 1041 (finding model jury instructions to
be persuasive in conducting a divisibility analysis and noting
that “California jury instructions require a jury to fill in a
blank identifying ‘a controlled substance’—i.e., only one—
demonstrating that the jury must identify and unanimously
agree on a particular controlled substance”). Furthermore, in
Lopez-Marroquin, we interpreted the fact that jury
instructions “could be consistent” with two statutory
alternatives—unlike here given the singular phrasing of
“(name of drug)”—as suggesting that the alternatives were
means, not elements:
[T]he California Criminal Jury Instructions
(“CALCRIM”) could be consistent with
principal or accessory after the fact liability.
CALCRIM 1820 (2020) (“To prove that the
defendant is guilty of this crime, the People
must prove . . . 1. The defendant drove
someone else’s vehicle without the owner’s
consent; AND 2. When the defendant drove
the vehicle, (he/she) intended to deprive the
26 ROMERO-MILLAN V. GARLAND
owner of possession or ownership of the
vehicle for any period of time.”).
9 F.4th at 1073.
The Arizona Court of Appeals has upheld a conviction
under § 13-3415 in a case in which “the jury was instructed
that possession of drug paraphernalia requires proof the
defendant used or possessed with the intent to use drug
paraphernalia to analyze methamphetamine and the item was
drug paraphernalia.” State v. Kelly, No. 1 CA-CR 14-0671,
2015 WL 4538447, at *3 (Ariz. Ct. App. July 28, 2015). By
concluding that this instruction was proper, the Kelly court
suggested that drug type (methamphetamine) is an element
that the jury must find unanimously. This suggestion is
bolstered by the Supreme Court’s reasoning in Mathis,
which treated a jury instruction as supporting a conclusion
that the pertinent statute was divisible when that jury
instruction, like the one in this case, referenced only one
drug as opposed to the entire list in the statute or an
“umbrella” term. 579 U.S. at 519. As the Court explained,
“an indictment and jury instructions 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.” Id.
Taking a “peek” at the record of conviction, see Lopez-
Marroquin, 9 F.4th at 1073 (citing Mathis, 579 U.S. at 518),
we conclude that the documents in this case establish that a
specific type of drug is identified in Romero-Millan’s plea
agreement and the corresponding information to which he
pled guilty. They explicitly identify cocaine as the substance
for which he pled guilty to possessing. See Mathis, 579 U.S.
at 519; Dominguez, 975 F.3d at 738 (citing as supporting
divisibility the fact that “the charging documents refer to one
ROMERO-MILLAN V. GARLAND 27
of the [statutory] alternatives to the exclusion of the other,
though the judgment . . . refers to both”).
Based on these considerations, we conclude that drug
type is an element of the offense under § 13-3415. That
statute is divisible as to drug type, so the BIA did not err in
applying the modified categorical approach, discussed
above, at 17–18.
Romero-Millan pled guilty to “us[ing] or possess[ing]
with intent to use, cocaine drug paraphernalia” per Count 3
of the information. That is an acceptable document for
determining which drug formed the basis of his conviction.
See Marcia-Acosta, 780 F.3d at 1250 (citing Shepard,
544 U.S. at 26). The BIA properly applied the modified
categorical approach to conclude that Romero-Millan was
convicted of a violation of § 13-3415 involving cocaine.
That substance is also on the federal list of controlled
substances. As a result, Romero-Millan is ineligible for
adjustment of status and inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II).
IV. Conclusion
We deny the petitions for review filed by Romero-Millan
and by Hernandez Cabanillas. We conclude that the two
Arizona criminal statutes involved in this case, A.R.S.
§§ 13-3408 and 13-3415, are both divisible. These two
petitioners were convicted of controlled substance offenses
that properly supported the orders of removal entered against
them.
PETITIONS FOR REVIEW DENIED.