Appeal ID 5464607 (BIA April 15, 2024)
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Immigrant & Refugee Appellate Center, LLCAppeal ID 5464607 (BIA April 15, 2024)
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Immigrant & Refugee Appellate Center, LLCNOT FOR PUBLICATION
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U.S. Department of Justice
Executive Office for hnmigration Review
Board of Immigration Appeals
MATTER OF:
(b)(6)
FILED
Apr 15, 2024
Respondent
ON BEHALF OF RESPONDENT: J110anna F. Sylio, Esquire
IN REMOVAL PROCEEDINGS
On Appeal from a Decision of the hmnigration Comt, Batavia, NY
Before: Clark, Appellate Innnigration Judge; Hunsucker, Appellate Irmnigration Judge; Petty,
AppeDate Irmnigration Judge
Opinion by AppeDate hmnigration Judge Hunsucker
HUNSUCKER. Appellate Irmnigration Judge
The respondent, a native and citiz.en of the Dominican Republic and lawful permanent resident
of the United States, appeals from the Innnigration Judge's November 8, 2023, decision finding
him removable as charged and denying his application for cancellation of removal for certain
permanent residents under section 240A(a) of the Immigration and Nationality Act ("INA"),
8 U.S.C. § 1229b(a). The Department of Horreland Security (''DHS') has not filed a response to
the appeal The record will be remanded.
We review findings off.act determined by an Innnigration Judge, including credibility findings,
under a "clearly erroneous" standard. 8 C.F.R § 1003.l(d)(3)(i). We review questions of law,
discretion, and judgment, and all other issues in appeals from decisions of hnmigration Judges de
novo. 8 C.F.R § 1003.l(d)(3)(iI).
Onl (b)(6) ~ the respondent was convicted of criminal possession of a controlled
substance in the fourth degree tmder section 220.09(2) of the New York Penal Laws ("NYPL").
Based on that conviction, OHS charged the respondent with removability tmder section
237{a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)(i), as a noncitiz.en convicted of violating a
law relating to controlled substance as defined by 21 U.S.C. § 802. The first attorney who appeared
on behalf of the respondent conceded the removability charge at a hearing held on December 1,
2022, which was sustained by an Irmnigration Judge (Tr. at 17-19). At a hearing held on July 18,
2023, an Immigration Judge provided the respondent's new cmmsel an opportunity to file a motion
to amend his pleading to the charge of removability (Tr. at 58-60). The respondent then filed a
motion to terminate removal proceed~ on August 1, 2023. An hmnigration Judge denied the
motion in a decision August 22, 2023, and found the respondent removable as charged because his
conviction qualifies as a violation of a law relating to a controlled substance. The Innnigration
Judge's November 8, 2023, decision ordering the respondent removed from the United States
Cite as: Appeal ID 5464607 (BIA April 15, 2024)
(b)(6)
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incorporated the prior hmnigration Judge's August 2022 removability finding (IJ at 2). On appeai
the respondent challenges the Immigration Judge's finding that he is removable as charged.
Because the record does not contain factual finding; necessary for us to properly determine the
legal issue of the respondent's removability, we will remand the record to the Innnigration Judge.
We apply the categorical approach to determine whether the respondent's conviction is crime
relating to a controlled substance. To categorically match the generic federal definition of a crime
relating to a controlled substance, ''the respondent's conviction nrust have necessarily involved, as
an element, a substance listed under the Federal Controlled Substances Act [('CSA')]." Matter of
Laguerre, 28 I&N Dec. 437,438 (BIA 2022) (citing Mellouli v. Lynch, 575 U.S. 798, 813 (2015);
Matter of P-B-B-, 28 l&N Dec. 43, 45-46 (BIA 2020))). We focus on the elements defining the
offense of conviction and the minimum conduct that has a 'realistic probability' of being
prosecuted under the statute. MatterofC. Morgan, 28 I&N Dec. 508,5 10 (BIA 2022) (quoting
Moncrieffe v. Holder, 569 U.S. 184, 191, 206 (2013)). Under the categorical approach, "if the
elements of the [respondent's] crime are narrower than the elements of the [generic) federal
offense, then the [respondent's) crime is a categorical match." Matter ofDelgado, 27 I&N Dec.
100, l 01 (BIA 2017)(citation omitted). A crime "is not a categorical match with a generic federal
offense if its elements are broader than those of the generic offense." Matter of C. Morgan, 28
I&N Dec. at 510 (citing Mathis v. United States, 579 U.S. 500, 509 (2016)). ''However, if the
respondent's ... 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.'"
Matter of Dikhtyar, 28 I&N Dec. 214, 215 (BIA 2021) (quoting Descamps, 570 U.S. at 257).
"Elements are the constituent parts of a crime's legal definition that the prosecution nrust prove
and what the jury must find beyond a reasonable doubt to convict the defendant. Means, by
contrast, merely descnbe the various ways by which a defendant may satisfy a single element."
Id. at 217. Only if the statute is divisible may we apply the modified categorical approach, in
which we look to the record of conviction to determine '\vhat crime, with what elements, [a
respondent] was convicted of" Mathis, 579 U.S. at 506. In order to determine whether a statute
sets forth alternative "elements" rather than ''rreans" we may examine (1) the statutory language,
(2) court decisions, (3) relevant jury instructions, and (4) the record of conviction if those sources
fail to provide answers. Matter of Koat, 28 I&N Dec. 450, 452 (BIA 2022) (citations omitted).
Whether the respondent's crime is categorically a crime relating to a controlled substance is a
question of law that we review de novo. 8 C .F.R § 1003.1 (d)(3)(ii.).
The respondent's statute of conviction states that a person is guilty of criminal possession of a
controlled substance when he knowingly and wllawfully possesses "one or more preparations,
compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of
isomers and said preparations, compounds, mixtures or substances are of an aggregate weight of
one-half otmee or more." NYPL § 220.09(2) (2003). The respondent argues that the statute is
indivisible and categorically overbroad because the federal definition of methamphetamine
includes only the drug's optical isomers, whereas New York's definition inchxles any isomers of
methamphetamine. See 21 U.S.C. § 802(14) (2016), 812(c) Schedule II(c), Schedule II(a)(3)
Cite as: Appeal ID 5464607 (BIA April 15, 2024)
(b)(6)
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{2012). 1 At no point during these proceeding.5 has anyone suggested that the statute is di:visib le,
and we have not fotmd any "authoritative sources of state law" showing that New York treats
methamphetamine as an element distinct from its salts or isomers. Matter of German Santos,
28 l&N Dec. 552, 555 (BIA 2022). Thus, we conclude that the statute is indivisible.
The United States Court of Appeals for the Second the Circuit, the jurisdiction tmder which
this case arises, considered the overbreadth of New York's definition of cocaine in United States
v. Minter, 80 F .4th 406 {2d Cir. 2023). 2 Like New York's definition of methamphetamine, its
definition of cocaine includes all of its "salts, isomers, and salts of isomers." Id. at 410 {citing
NYPL § 3306, Schedule II(b){4)). In contrast, the only isomers ofcocaine expressly criminalized
tmder federal law are the substance's optical and geometric isomers. Id. {citing 21 C.F.R
§§ 1308.0l(b}, 1308.12{b){4)). The court held that New York's definition of cocaine is
categorically broader than the federal definition because 1.D.llike the federal definition, which is
expressly limited to optical and geometric isomers, the New York definition contains no such
"express limitation." Id. at 410-11. The court finther held that the defendant was not required to
show a realistic probability that the statute would be applied in an overbroad manner in practice
because, rather than having an indeterminate reach, "the statute's scope is plain." Id. at 413 (citing
Williams v. Barr, 960 F.3d 68, 78 {2d Cir. 2020)).
Based on the Second Circuit's precedent in Minter, New York's definition pf
methamphetamine is racially broader than the federal definition because it is not expressly limited
to the drug's optical isomers. However, further fuctfinding is necessary here. Minter recognized
I
that non-federally controlled isomers of cocaine do chemically exist. Id. at 412 {citing (b)(6) Iv.
United States, 2022 WL I (b)(6) ~ at *8 (E.D.N.Y.I (b)(6) ~) . But, the record is wclear as to
whether non-federally controlled {i.e., non-opticaQ isomers of methamphetamine exist We will,
therefore, remand the record to the lrrnnigration Judge to determine whether such isomers can
chemically exist See, e.g., United States v. Rodriguez-Gamboa, 972 F .3d 1148, 1153 (9th Cir.
2020) (holding that a statute's racial overbreadth "does not aid us in applying the categorical
approach when there is no possibility of application of the state statute to nongeneric conduct");
United States v. Turner, 47 F.4th 509, 514 (7th Cir. 2022) ('1A] categorical mismatch cannot be
based on truly impossible conduct.'); Chamuv. U.S.AttyGen.,23F.4th 1325, 1331-32(11thCir.
2022) (holding that a racially overbroad state's definition of a drug is not categorically overbroad
if non-federally controlled isomers of the drug do not actually exist). 3 After making that factual
1 We look to the relevant statutes in force at the time of conviction to determine whether the
respondent was convicted of a removable offense. See, e.g., Matter of Pougatchev, 28 l&N Dec.
719, 725 (BIA 2023). •
2 Minter was issued after the August 2022 decision denying the respondent's motion to terminate,
but prior to the November 2023 removal order. The respondent never addressed Minter's
applicability before the Immigration Judge and has not done so in his appellate brief
3 If DHS believes that non-optical isomers of methamphetamine do not exist, it should submit
reliable evidence to establish that fact. See INA 240(c)(3)(A), 8 U.S.C. § 1229a(c){3)(A)
Cite as: Appeal ID 5464607 (BIA April 15, 2024)
(b)(6)
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finding, he should determine whether the respondent's statute of conviction applies to chemically
possible isomers ofmethamphetamine not identified by federal law consistent with Second Circuit
caselaw. Minter, 80 F.4th at 413. Given our disposition of this matter, we decline to address the .
respondent's arguments regarding his eligibility for relief at this time.
Accordingly, the following order will be entered.
ORDER: The record is remanded for further proceeding, consistent with the foregoing opinion
and for the entry of a new decision.
(providing that DHS has the burden to establish a noncitiz.en' s deportability by clear and
convincing evidence).
