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U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - SND

880 Front St., Room 2246
San Diego, CA 92101-8834

Name: LOPEZ-VALENCIA, ROBERTO

A 090-797-248

Date of this notice: 12127/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Dowu_ ctl/VL)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John
Pauley, Roger
Geller, Joan B

i ,.anC
Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Roberto Lopez Valencia, A090 797 248 (BIA Dec. 27, 2016)

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Hong, Kari Elisabeth

Boston College Appellate Project
885 Centre St
Netwon, MA 02459

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - SND

880 Front St., Room 2246
San Diego, CA 92101-8834

Name: LOPEZ-VALENCIA, ROBERTO

A 090-797-248

Date of this notice: 12/27/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a).

If the attached decision orders that you be

removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DOYutL ctl/V1..)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John
Pauley, Roger
Geller, Joan B

1 ra:<'. :
Userteam: Po<;.
.'

Cite as: Roberto Lopez Valencia, A090 797 248 (BIA Dec. 27, 2016)

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LOPEZ-VALENCIA, ROBERTO
A090-797-248
OTAY MESA DETENTION CENTER
P.O. BOX 439049
UNIT POD G CELL #214
SAN DIEGO, CA 92143

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File:

Date:

A090 797 248 - San Diego, CA

DEC 2 7 2016

In re: ROBERTO LOPEZ VALENCIA a.k.a. Adelado Cortez

APPEAL
ON BEHALF OF RESPONDENT:

Kari E. Hong, Esquire

CHARGE:
Notice: Sec.

237(a)(2)(B)(i), l&N Act [8 U.S.C. 1227(a)(2)(B)(i)] Convicted of controlled substance violation

APPLICATION: Removability

This case comes before the Board

ursuant to an order of the United States Court of Appeals

for the Ninth Circuit ("circuit court").

Lopez-Valencia

v.

Lynch, 798 F.3d 863 (9th Cir. 2015)

(concluding that California Penal Code 484 (theft offense) is overbroad and indivisible, and
holding that the alien's conviction was categorically not a generic theft offense as defined by
section 101(1)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. l 10l(a)(43)(G)). The
circuit court now instructs the Board to consider whether the respondent's conviction under
section 11550(a) of the California Health and Safety Code is a controlled substance violation
rendering the respondent removable under section 237(a)(2)(B)(i) of the Act, 8 U.S.C.
1127(a)(2)(B)(i). The respondent has offered a brief on remand to the Board. The Department
of Homeland Security has not offered a brief on remand.
On appeal, the respondent contests his removability under section 237(a)(2)(B)(i) of the Act.
The Board reviews Immigration Judges' findings of fact under a "clearly erroneous" standard.
See 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties
have

met

the

relevant

burden

of

proof,

and

issues

of

discretion.

See

C.F.R.

1003.l(d)(3)(ii). Upon review, we will sustain the appeal and terminate the proceedings.

In a decision dated September 28, 2012, the Board dismissed the respondent's appeal from the

Immigration Judge's April 27, 2012, decision finding him removable as an alien convicted of an
aggravated felony as defined at section 10l(a)(43)(G) of the Immigration and Nationality Act,
8 U.S.C. 1101(a)(43(G). See section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii).
We did not consider the respondent's arguments on appeal challenging the Immigration Judge's
alternate

finding

of

removability

under

section

237(a)(2)(B)(i)

of

the

1227(a)(2)(B)(i).

Cite as: Roberto Lopez Valencia, A090 797 248 (BIA Dec. 27, 2016)

Act,

U.S.C.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

. A090 797 248

An alien is removable under section 237(a)(2)(B)(i) of the Act if he or she is convicted of an

offense relating to a controlled substance as defined by section 102 of the Controlled Substance
Act ("CSA"), 21 U.S.C. 802.

Initially, we note that California's list of controlled substances

includes one or more substances not controlled by the CSA. See, e.g., Medina-Lara v. Holder,
771 F.3d 1106, 1112 (9th Cir. 2014), citing Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034
of many substances that are not regulated by the D CSA"). Inasmuch as California Penal Code
l 1550(a) is overboard, it is not a categorical match to the generic offense. See Matter ofSilva
Trevino, 26 l&N Dec. 826, 831 (BIA 2016)

("In evaluating the criminal statute under the

categorical approach, unless circuit court law dictates otherwise, we apply the realistic
probability test . . . [which] requires us to focus on the minimum conduct that has a realistic
probability of being prosecuted under the statute of conviction, rather than on the facts
underlying the [alien's] particular violation of that statute"); see also Moncrieffe v. Holder,
133 S.Ct. 1678, 1684 (2013) (explaining that when the Government alleges that a state
conviction qualifies as an "aggravated felony" under the Act, a "categorical approach" is
generally applied to determine whether the state offense is comparable to an offense listed in the
Act); Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2006) (finding no categorical fit
because "California law regulates the possession and sale of numerous substances that are not
similarly regulated by the CSA").
Inasmuch as California Health and Safety Code 11550(a) is "overbroad," we must
determine whether it is a "divisible" or an "indivisible" statute. See Lopez-Valencia v. Lynch,
supra, at 867-68; Medina-Lara v. Holder, supra. When a statute is overbroad and divisible, we

may apply a "modified categorical approach" to determine what elements of the divisible
statute the alien was convicted of violating. Id. at 868. See also Descamps v. United States,
133 S. Ct. 2276, 2293 (2009); Medina-Lara v. Holder, supra, at 1113.
California Health and Safety Code 11550(a) is a divisible statute.

Section 11550(a)

criminalizes conduct related to a finite list of individual substances which are set out in the
disjunctive.

These

individual

substances

constitute

"elements"

of

the

crime's

legal

determination, rather than mere alternative means for committing the crime.2 See Matter of

Martin Chairez-Castrejon, 26 l&N Dec. 819, 823 (BIA 2016)("'Elements' are the 'constituent

parts' of a crime's legal definition - the things the 'prosecution must prove to sustain a
conviction"'), citing Mathis v. United States, 136 S.Ct. 2243, 2248 (2016).

Inasmuch as

Elements "are the things the prosecution must prove to sustain a conviction, i.e., at trial, what
the jury must find beyond a reasonable doubt to convict the defendant, and at a plea hearing,

what the defendant necessarily admits when he pleads guilty." Mathis v. United States, supra,
at 2243.

Under the California Criminal Code, to find guilt under section l 1550(a) of the

California Health and Safety Code, it must be proven that the defendant was willfully and
unlawfully under the influence of a specific controlled substance listed in section l 1550(a) of the
California Health and Code.

See section 2400 of the California Criminal Code (providing a

blank space where the controlled substance is to be identified, and directing that the jury "must"

find that fact to convict a defendant of using or being under the influence of controlled
substance).

Cite as: Roberto Lopez Valencia, A090 797 248 (BIA Dec. 27, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

(9th Cir. 2010) ("We have previously found that California law regulates the possession and sale

. A090 797 248

section 11550(a) of the California Health and Safety Code is both overbroad and divisible, we
may examine a limited class of docwnents (for example, the indictment, jury instructions, and
plea agreement and colloquy) under a "modified categorical approach" to determine what
elements of the section l 1550(a) the respondent was convicted of violating. See Lopez-Valencia
v.

Lynch, supra, at 868. See also Mathis

v.

United States, supra, at 2249; Descamps

v.

United

United States, 125 S.Ct. 1254, 1263 (2005).

In finding the respondent removable as an alien convicted of a controlled substance violation,

the Immigration Judge looked to the Notice to Appear (Exhibit 1), as well as the criminal
complaint and the plea colloquy (Exhibit 3).3 See Immigration Judge's Decision at 2. On
appeal, the respondent argues that the conviction records refer only to "stimulant."

See

Respondent's Brief at 14-15. Although he also states that "[i]t does appear that 'stimulants' are a
match to substances regulated by the [F]ederal statutes," the respondent argues that the
conviction records do not identify the specific substance underlying his conviction under
section l 1550(a) of the California Health and Safety Code. Id, at 15, 17.
The "stimulants" barred under California law are nearly identical to substances barred under
the CSA. Nevertheless, the California Health and Safety Code prohibits the stimulant known as
"Khat," (Catha Edulis ), which is not prohibited under the CSA. See Coronado

v.

Holder, 747

F.3d 662, 667 (9th Cir.), opinion amended and superseded, 759 F.3d 977 (9th Cir. 2014), cert.

denied, 135 S. Ct. 1492, 191 L. Ed. 2d 430 (2015); section l 1377(a)(5) of the California Health

and Safety Code (prohibiting substances specified in sections l 1055(d), (e), or (f) of the
California Health and Safety Code); section l 1055(d)(7) of the California Health and Safety
Code (prohibiting "[k]hat, which includes all parts of the plant classified botanically as Catha
Edulis"); see also, e.g., United States

v.

Hassan, 578 F.3d 108, 114 (2d Cir. 2008) ("Khat itself is

not a controlled substance under United States law."); United States

v.

Caseer, 399 F.3d 828, 833

(6th Cir. 2005) ("[N]either the U.S. Code nor the Code of Federal Regulations ... refers to ...
Catha edulis, commonly known as 'khat"').
To prove removability, the Government must show that the respondent's conviction was for
possession of a substance that is not only listed under California law, but also contained in the
Federal schedules of the CSA.

Upon examination of the conviction records included in the

record of these proceedings, we find that the particular controlled substance or "stimulant"
underlying the respondent's conviction has not been identified.

Indeed, the Immigration Judge

acknowledged in his decision that "the actual plea agreement did not mention the particular drug
involved." Immigration Judge's Decision at 3. We conclude, therefore, that under a "modified

In finding the respondent removable based on a controlled substance violation, the

Immigration Judge also relied on Exhibit 20. See Immigration Judge's Decision at 2. Exhibit 20,
however, refers to the respondent's conviction for "petty theft with priors" in violation of
sections 666 and 484(a) of the California Penal Code. We further note that the Notice to Appear
is not a docwnent included in the limited class of permissible docwnents used to determine
whether an alien was convicted of the statutory alternative matching the generic offense. See
Shepard

v.

United States, supra,

Cite as: Roberto Lopez Valencia, A090 797 248 (BIA Dec. 27, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

States, supra; Shepard

v.

--- - --

..._...

A090 797 248

categorical approach," the respondenfs conviction under section 11550(a) of the California
Health and Safety Code, a "divisible" statute, is not a conviction for an offense relating to a
controlled substance

as

defined by section 102 of the CSA.

therefore, that the respondent is removable

as

It has not been established,

an alien convicted of a controlled substance

violation under section 237(a)(2)(B)(i) of the Act. Accordingly, the respondent's appeal will be

Immigrant & Refugee Appellate Center, LLC | www.irac.net

sustained and these removal proceedings will be terminated.4

The following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The proceedings are terminated.

Inasmuch

as

these proceedings will be terminated, we will not at this time consider the

respondent's arguments pertaining to the Board's decision in Matter

of Ferriera,

415 (BIA 2014).

Cite as: Roberto Lopez Valencia, A090 797 248 (BIA Dec. 27, 2016)

26 I&N Dec.