Jorge Romero-Millan v. Merrick Garland

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JORGE ROMERO-MILLAN, No. 16-73915 Petitioner, Agency No. v. A077-138-666 MERRICK B. GARLAND, * Attorney General, Respondent. ERNESTO HERNANDEZ CABANILLAS, No. 17-72893 Petitioner, Agency No. v. A095-285-170 MERRICK B. GARLAND,* Attorney General, OPINION Respondent. On Petition for Review of Orders of the Board of Immigration Appeals * Merrick B. Garland is substituted for his predecessor, William P. Barr, as Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2). 2 ROMERO-MILLAN V. GARLAND Argued and Submitted March 6, 2020 Submission Withdrawn May 4, 2020 Resubmitted August 22, 2022 Phoenix, Arizona Filed August 29, 2022 Before: Richard R. Clifton, John B. Owens, and Mark J. Bennett, Circuit Judges. Opinion by Judge Clifton SUMMARY ** Immigration Denying separate petitions for review filed by Jorge Romero-Millan and Ernesto Hernandez Cabanillas from decisions of the Board of Immigration Appeals, the panel held that: 1) Arizona’s drug possession statute, A.R.S. § 13- 3408, and Arizona’s possession of drug paraphernalia statute, A.R.S. § 13-3415, are divisible as to drug type; and 2) the BIA did not err in concluding that petitioners were convicted of controlled substance offenses that supported their orders of removal. The BIA concluded that Romero-Millan was inadmissible and ineligible for adjustment of status based on his § 13-3415 conviction. Hernandez Cabanillas, who was a ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ROMERO-MILLAN V. GARLAND 3 lawful permanent resident, was found removable based on his § 13-3408 conviction. For both petitioners, the agency applied the modified categorical approach to determine that their Arizona convictions were convictions for controlled substances under federal law. However, because Arizona’s list of prohibited drugs is overbroad with respect to federal law, the panel previously certified three questions to the Supreme Court of Arizona: 1) Is A.R.S. § 13-3415 divisible as to drug type?; 2) Is A.R.S. § 13-3408 divisible as to drug type?; and 3) Put another way, is jury unanimity required as to which drug or drugs was involved in an offense under either § 13-3415 or § 13-3408? The Supreme Court of Arizona ruled that it had improvidently accepted the first two questions because divisibility pertains solely to federal law, and no Arizona court had addressed the issue. On the third question, the Supreme Court of Arizona concluded that jury unanimity as to the identity of the drug involved was required for a conviction under § 13-3408. However, the court declined to answer that question as to § 13-3415, explaining that a prior state court of appeal decision containing a relevant discussion had not been appealed to it, and therefore, it was reticent to take a position given the possibility of unintended consequences that were not fully addressed by the parties in that case. Although petitioners’ removal orders were based on convictions that could trigger the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C), the panel explained …

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