Caballero-Aceves v. Garland

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JOSE ANTONIO CABALLERO-ACEVES, Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent.

No. 22-9531

United States Court of Appeals, Tenth Circuit

April 6, 2023

Petition for Review

Before HARTZ, KELLY, and EID, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Allison H. Eid Circuit Judge

Petitioner Jose Caballero-Aceves petitions for review of an order of the Board of Immigration Appeals (BIA or Board) that affirmed the Immigration Judge's (IJ) decision pretermitting his application for cancellation of removal. The IJ found that Petitioner's 2019 California drug conviction made him ineligible for cancellation relief. We deny the petition for review.

1. Petitioner was placed in removal proceedings and sought cancellation relief.

Petitioner is a native and citizen of Mexico. His parents brought him to the United States when he was a toddler. He was formerly married to a United States citizen and has four United States citizen children. He has struggled for many years with drug addiction and has a lengthy criminal history.

In November 2012 the Department of Homeland Security issued Petitioner a Notice to Appear, which charged that he was removable as an alien present in the United States who had not been admitted or paroled. He conceded the charge in the Notice but sought various forms of relief to prevent his removal, including adjustment of status, asylum, withholding of removal, protection under the Convention Against Torture, waiver of inadmissibility, and cancellation of removal. Over the next decade the agency conducted extensive proceedings concerning Petitioner's removal and the relief he had requested. The parties are familiar with the lengthy and complicated history of those proceedings, and we need not describe them here in detail.

A single form of relief remains at issue in this petition for review: cancellation of removal. And only a single issue pertaining to that relief is before us: whether Petitioner's 2019 conviction for unauthorized possession of a controlled substance under California Health &Safety Code § 11377(a) made him ineligible for cancellation of removal.

The IJ concluded the 2019 conviction made him ineligible for relief because Petitioner failed to show it was not a disqualifying controlled substance offense. He appealed to the BIA. Applying the "modified categorical approach," the BIA concluded § 11377(a) is divisible with respect to the substance possessed. The Board agreed with the IJ that the record was inconclusive concerning which drug Petitioner possessed, and he therefore failed to show that he had not been convicted of a disqualifying offense. It therefore dismissed his appeal.^[1] He petitioned for review.^[2]

2. Petitioner has raised a legal issue that we review de novo.

"We review de novo the BIA's conclusions on questions of law, including whether a particular state conviction results in ineligibility for discretionary relief." Zarate-Alvarez v. Garland, 994 F.3d 1158, 1161 (10th Cir. 2021).

3. Petitioner's 2019 conviction is not categorically a controlled substance violation.

To obtain relief under the cancellation of removal statute, a noncitizen must not have been convicted of an offense identified in 8 U.S.C. §§ 1182(a)(2) or 1227(a)(2). See 8 U.S.C. § 1229b(b)(1)(C). These sections refer to disqualifying offenses that involve a "controlled substance . . . as defined in [21 U.S.C. § 802]." 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i).

Where "the [Immigration and Nationality Act] refers to generic crimes, we apply the categorical approach to determine whether a state conviction falls within the generic federal definition." Zarate-Alvarez, 994 F.3d at 1161. "Under the categorical approach, we compare the elements of the statute of conviction with the generic federal definition of the crime to determine whether conduct that would satisfy the former would necessarily also satisfy the latter." Id.

The federal definition is found in the Controlled Substances Act, 21 U.S.C. § 802, which contains a list of federally controlled substances. See Mellouli v. Lynch, 575 U.S. 798, 813 (2015) (stating §1227(a)(2)(B)(i) "limits the meaning of 'controlled substance,' for removal purposes, to the substances controlled under § 802"). The BIA determined, and the government concedes, that a violation of California Health &Safety Code § 11377(a) is not categorically a controlled-substance offense under the federal definition. This is because it is possible to violate § 11377(a) by possessing a substance that the federal definition in § 802 does not criminalize.^[3]

4. Section 11377(a) is divisible under the modified categorical approach.

The fact that the state statute criminalizes more activity than its federal counterpart does not end our analysis, however. Under the "modified categorical approach," if § 11377(a) is "divisible" and therefore creates different crimes based on the specific controlled substance possessed, and if the specific substance Petitioner was convicted of possessing is a controlled substance under federal law, his conviction could still disqualify him from cancellation relief. See Mathis v. United States, 579 U.S. 500, 505-06 (2016) (describing the "modified categorical approach"). But this modified categorical approach applies only where the alternative phrases listed in a divisible statute form the elements of separate crimes and are not just different means of committing the same crime. United States v. Titties, 852 F.3d 1257, 1267 (10th Cir. 2017).

"Elements are the constituent parts of a crime's legal definition-the things the prosecution must prove to sustain a conviction." United States v. Cantu, 964 F.3d 924, 927 (10th Cir. 2020) (internal quotation marks omitted). "Means, in contrast, spell out various factual ways of committing some component of the offense...." Id. at 928 (brackets and internal quotation marks omitted).

We have several tools available to determine whether § 11377(a) meets the "elements" test and is therefore divisible. First, the answer may be facially clear from the language of the statute. Titties, 852 F.3d at 1267. Second, "state-court decisions may answer the question." Id. at 1268. Finally, "when state law fails to provide clear answers" we may examine "the record of a prior conviction itself." Id. (internal quotation marks omitted). In applying this test, our analysis should lead us to "certainty" that the statute contains alternative elements. Id. That is, we must "be at least more certain than not that a statute's alternatives constitute elements" rather than means. United States v. Degeare, 884 F.3d 1241, 1248 n.1 (10th Cir. 2018).

A. Language of the statute

Section 11377(a) provides:

(a) Except as authorized by law . . . every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055 . . . shall be punished by imprisonment in a county jail for a period of not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has [certain] prior convictions ....

Cal. Health &Safety Code § 11377(a).

In a 2014 decision, the Ninth Circuit concluded that § 11377(a) was facially divisible because it "identifies a number of California drug schedules and statutes and organizes them into five separate groups, which are listed in the disjunctive . . . thus effectively creat[ing] several different crimes." Coronado v. Holder, 759 F.3d 977,984-85 (9th Cir. 2014) (ellipsis and internal quotation marks omitted). But Coronado was decided before the Supreme Court's decision in Mathis, which instructed courts not to assume that a statute is divisible merely because it contains a disjunctive list, because such a list may only "enumerate[] various factual means of committing a single element." Mathis, 579 U.S. at 506; see also, e.g., Johnson v. Barr, 967 F.3d 1103, 1108-09 (10th Cir. 2020) (concluding statute that referred to schedules of controlled substances was not facially divisible as to individual substances, because jury only had to agree that defendant possessed a drug covered by one of the schedules, thus agreeing on the "element" of possessing a controlled substance but not necessarily on the "means" represented by the individual substance).

After Mathis, the Ninth Circuit analyzed a similar California statute and reached a similar result (albeit using a slightly different approach) than in Coronado. United States v. Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017) (en banc). In Martinez-Lopez, the court concluded that California Health &Safety Code § 11352, which like § 11377(a) criminalizes activities related to controlled substances by referring to other code provisions, was divisible by controlled substance. See id. at 1039-41. But it did not reach this result, as it had in Coronado, by relying on the statute's facial language. Instead, it examined California state-court decisions. See id.

The same approach is appropriate here. The language of § 11377(a), which prescribes a single penalty for possessing various substances described in various statutes and schedules, does not facially resolve whether possession of a particular substance is an "element" of the crime or a "means" of committing it. Although Petitioner ultimately concedes "the statutory text does not clearly answer the question of whether the statutory...