Romero-Millan v. Garland

46 F.4th 1032

Jorge ROMERO-MILLAN, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

Ernesto Hernandez Cabanillas, Petitioner,

v.Merrick B. Garland, Attorney General, Respondent.

No. 16-73915

No. 17-72893

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2020

Submission Withdrawn May 4, 2020

Resubmitted August 22, 2022 Phoenix, Arizona

Filed August 29, 2022

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.

Before: Richard R. Clifton, John B. Owens, and Mark J. Bennett, Circuit Judges.

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 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 1041, "[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. 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 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 1043.

After the Arizona court issued its decision responding to our certified questions, we consolidated these two cases.² We deny both petitions for review.

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, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015), however, he 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 1036–37, 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, at 1041–42. Using the modified categorical approach, also discussed below, at 1042–43, 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 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...