Elisio Atenia Lorenzo v. Matthew G. Whitaker

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELISIO ATENIA LORENZO, No. 15-70814
Petitioner, Agency No. A038-467-916
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 15, 2018
Pasadena, California
Before: THOMAS, Chief Judge, and FISHER and BEA, Circuit Judges.**
Elisio Atenia Lorenzo petitions for review of the decision of the Board of
Immigration Appeals (BIA) denying his motion to terminate his removal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
This case was submitted to a panel that included Judge Stephen
Reinhardt. Following Judge Reinhardt’s death, Judge Bea was drawn by lot to
replace him. Ninth Circuit General Order 3.2h. Judge Bea has reviewed all case
materials.
proceedings and ordering him removed. We have jurisdiction under 8 U.S.C. §
1252, and – on the record before us in this case – we grant the petition and
remand.1
I
In 2013, Lorenzo pled nolo contendere to possession of methamphetamine,
in violation of California Health and Safety Code § 11378, and transportation of
methamphetamine, in violation of California Health and Safety Code § 11379(a).
The record of conviction does not identify the type of methamphetamine involved,
and, under California law, “methamphetamine” is broadly defined to include
“[m]ethamphetamine, its salts, isomers, and salts of its isomers.” Id. §
11055(d)(2). Health and Safety Code § 11033, in turn, provides that the term
“isomer,” unless otherwise defined, “includes optical and geometrical
(diastereomeric) isomers.”
The Department of Homeland Security initiated removal proceedings against
Lorenzo based on his 2013 state convictions. The notice to appear charged
Lorenzo with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), on the ground that
his § 11379(a) conviction constituted an aggravated felony under 8 U.S.C. §
1101(a)(43)(B). Alternatively, and as relevant here, the notice to appear charged
1
We also deny the government’s petition for panel rehearing and
motion for judicial notice for the reasons discussed below.
2
Lorenzo with removability under 8 U.S.C. § 1227(a)(2)(B)(i), on the ground that
his §§ 11378 and 11379(a) convictions constituted violations of state law “relating
to a controlled substance.”
Lorenzo moved to terminate removal proceedings, contending his
methamphetamine convictions did not necessarily involve a controlled substance
as defined by federal law. Specifically, he argued the definition of
methamphetamine under California law is broader than the definition of
methamphetamine under the federal Controlled Substances Act (CSA), because the
CSA’s definition includes only optical isomers of methamphetamine, whereas
California law includes both optical and geometric isomers of methamphetamine.
An immigration judge (IJ) denied Lorenzo’s motion and ordered him
removed, concluding that Lorenzo’s convictions qualified as controlled substance
offenses under 8 U.S.C. § 1227(a)(2)(B)(i). The BIA adopted and affirmed the IJ’s
decision under Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), while also
providing its own analysis. Lorenzo timely petitioned for review.
II
We review the BIA’s determination of purely legal questions de novo, see
Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003), including
whether a particular conviction under state law is a removable offense, see
Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016), and whether a
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statute is divisible, see United States v. Martinez-Lopez, 864 F.3d 1034, 1039-40
(9th Cir. 2017) (en banc) (citing Almanza-Arenas v. Lynch, 815 F.3d 469, 477 (9th
Cir. 2016) (en banc)).
We use “a three-step analysis” to determine whether a state conviction
qualifies as a controlled substance offense under federal law. See id. at 1038.
First, we determine whether state law bars “the same amount of or less conduct
than” federal law. Id. (quoting United States v. Hernandez, 769 F.3d 1059, 1062
(9th Cir. 2014)). If so, then the state conviction is a categorical match, and the
state conviction is a ground for removability. See id. If the state law encompasses
more conduct than the federal law, however, we proceed to the second step and
determine whether the state law is divisible – i.e., whether the overly broad
element sets out alternative means of committing a single crime or alternative
elements of committing two or more distinct crimes. See id. at 1038-39. At step
three, if the statute is divisible, we employ the modified categorical approach,
where we may look to documents in the record of conviction, but not the particular
facts underlying the conviction, to determine whether the conviction qualifies. See
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). If the statute is overbroad
and not divisible, then the conviction cannot be a ground for removal. See id. at
2248-49.
III
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A
Applying the first step in this analysis here, we conclude the definition of
“methamphetamine” applicable to convictions under California Health & Safety
Code §§ 11378 and 11379(a) is broader than the definition of methamphetamine
under the federal Controlled Substances Act, 21 U.S.C. § 812. The California
definition includes both optical and geometric isomers of methamphetamine,
whereas the federal definition includes only optical isomers of methamphetamine.
Compare Cal. Health & Safety Code § 11033, with 21 U.S.C. §§ 802(14), 812
Schedule II(c), Schedule III(a)(3). Accordingly, California law is facially
overbroad. See Martinez-Lopez, 864 F.3d at 1038.
Because this mismatch between the federal and state statutes is apparent on
the face of the statutes, such that no rational interpretation of either statute would
reconcile the two, Lorenzo is not required to “point to his own case or other cases
in which the state courts in fact did apply the statute in the special (nongeneric)
manner for which he argues.” Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193
(2007); see United States v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc)
(“[W]hen ‘[t]he state statute’s greater breadth is evident from its text,’ a defendant
may rely on the statutory language to establish the statute as overly inclusive.”
(citation omitted)); United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en
banc) (“Where, as here, a state statute explicitly defines a crime more broadly than
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the generic definition, no ‘legal imagination,’ is required to hold that a realistic
probability exists that the state will apply its statute to conduct that falls outside the
generic definition of the crime. The state statute’s greater breadth is evident from
its text.” (citation omitted)), abrogated on other grounds by United States v. Stitt,
139 S. Ct. 399 (2018).
In its petition for panel rehearing, the government contends the facial
overbreadth in California law is of no significance because geometric isomers of
methamphetamine do not in fact exist. The government also asks us to take
judicial notice of evidence presented in a different case to support that new
assertion. We reject these entreaties. First, “[a]s a general rule, we will not
consider issues that a party raises for the first time in a petition for rehearing,”
United States v. Mageno, 786 F.3d 768, 775 (9th Cir. 2015) (quoting Varney v.
Sec’y of Health & Human Servs., 859 F.2d 1396, 1397 (9th Cir. 1988)), or during
oral argument, see In re Pac. Pictures Corp., 679 F.3d 1121, 1130 (9th Cir. 2012).
Second, our review generally is limited to the information in the administrative
record. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc). The
government could have raised its argument about theoretical impossibility in this
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court, but it did not timely do so. We do not foreclose the government from
presenting its new argument or new evidence in another case.2
B
Turning to the second step in the categorical analysis, we conclude that the
methamphetamine element applicable to a conviction under Health & Safety Code
§§ 11378 or 11379(a) is not divisible, because the different varieties of
methamphetamine covered by California law are alternative means of committing
a single crime rather than alternative elements of separate crimes. See People v.
Schroeder, 70 Cal. Rptr. 491, 499 (Ct. App. 1968) (explaining that possession of
different types of the same drug – e.g., different types of methamphetamine –
“would constitute a single offense” under California law); see also In re Adams,
536 P.2d 473, 477 (Cal. 1975) (citing this aspect of Schroeder with approval). We
therefore do not apply the modified categorical approach. See Mathis, 136 S. Ct. at
2248-49.
IV
2
The government’s petition for rehearing contends our decision
violates the ordinary remand rule, see INS v. Orlando Ventura, 537 U.S. 12, 16
(2002) (per curiam), because it finds in the first instance that geometric isomers of
methamphetamine do in fact exist. Our decision, however, does not conclude that
geometric isomers of methamphetamine exist; it concludes only that the record in
this case does not show that they do not exist.
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In sum, Lorenzo’s methamphetamine convictions under California Health &
Safety Code §§ 11378 and 11379(a) do not qualify as controlled substance
offenses under 8 U.S.C. § 1227(a)(2)(B)(i). Accordingly, Lorenzo is not
removable for the reasons stated by the BIA. Because the IJ and the BIA did not
consider whether Lorenzo was removable on the ground that his Health & Safety
Code § 11379(a) conviction constitutes an “illicit trafficking in a controlled
substance” aggravated felony under 8 U.S.C. §§ 1101(a)(43)(B) and
1227(a)(2)(A)(iii), we do not address that question. See Andia v. Ashcroft, 359
F.3d 1181, 1184 (9th Cir. 2004) (“In reviewing the decision of the BIA, we
consider only the grounds relied upon by that agency.”). If the BIA addresses the
government’s aggravated felony theory on remand, it should consider whether that
theory suffers from the same flaw as the government’s theory of removability
under 8 U.S.C. § 1227(a)(2)(B)(i).
PETITION GRANTED; REMANDED.
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