Johnson v. Barr

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS July 31, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ EVERETTE LIVINGSTON JOHNSON, a/k/a Everette Burns, a/k/a Everette Allen, Petitioner, v. No. 19-9550 WILLIAM P. BARR, United States Attorney General, Respondent. _________________________________ Petition for Review of an Order from the Board of Immigration Appeals _________________________________ Joshua Mitson (Hans Meyer, with him on the briefs), , Meyer Law Office P.C., Denver, Colorado, for Petitioner Everett Johnson. Kohsei Ugumori, Senior Litigation Counsel (Joseph H. Hunt, Assistant Attorney General, and Emily Anne Radford, Assistant Director, with him on the brief), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent. _________________________________ Before BACHARACH and CARSON, Circuit Judges.1 _________________________________ 1 The late Honorable Monroe G. McKay, United States Senior Circuit Judge, heard oral argument and participated in the panel’s conference of this appeal, but passed away before its final resolution. The practice of this court permits the remaining two panel judges, if in agreement, to act as a quorum in resolving the appeal. United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997); 28 U.S.C. § 46(d). CARSON, Circuit Judge. _________________________________ Petitioner Everett Johnson, a citizen of the Bahamas, became a United States permanent resident in 1977. But in 2016, he pleaded guilty to possessing a schedule II controlled substance in violation of Colorado law. Soon after, the Department of Homeland Security (DHS) charged Johnson as removable from the United States based on the state drug conviction. The Board of Immigration Appeals (BIA) then ordered Johnson’s removal from the United States back to the Bahamas. Johnson now petitions for review of that decision. Our jurisdiction arises under 8 U.S.C. § 1252. We address whether Johnson’s state drug conviction under the 2016 version of Colorado Revised Statute (C.R.S.) § 18-18-403.5(1), (2)(a) subjects him to deportation from the United States. Because C.R.S. § 18-18-403.5(1), (2)(a) is overbroad and indivisible as to the identity of a particular controlled substance, Johnson’s conviction cannot subject him to removal from the United States. We therefore grant Johnson’s petition for review, vacate the BIA’s order, and remand to the BIA for further proceedings consistent with this opinion. I. After pleading guilty to possessing hydrocodone, a schedule II controlled substance under Colorado law, DHS initiated removal proceedings against Johnson. DHS charged him as removable under 8 U.S.C. § 1227(a)(2)(B)(i), a provision in the Immigration and Nationality Act that authorizes removing an alien for a state law 2 conviction “relat[ed] to a controlled substance (as defined in section 802 of Title 21).” Johnson moved to terminate the removal proceedings before an immigration judge. He argued that under the categorical/modified categorical approach as established by the United States Supreme Court, his state drug conviction did not qualify as a removable offense under 8 U.S.C. § 1227(a)(2)(B)(i). Johnson claimed that C.R.S. § 18-18-403.5(1), (2)(a) was broader than its federal counterpart, the Controlled Substances Act, 21 U.S.C. § 801, et seq. (the ...

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