U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Of
f ice ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Whitehead, Marshall OHS/ICE Office of Chief Counsel - PHO
Federal Immigration Counselors 2035 N. Central Ave.
141 E. Palm Lane Phoenix, AZ 85004
Ste. 112
Phoenix, AZ 85004

Name: ARREAZA-OLIVA, ERIEL DE JE... A 042-174-443

Date of this notice: 2/28/2018

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Snow, Thomas G

Userteam: Docket

For more unpublished decisions, visit

www.irac.net/unpublished/index

Cite as: Eriel De Jesus Arreaza-Oliva, A042 174 443 (BIA Feb. 28, 2018)
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r, U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A042 174 443 - Phoenix, AZ Date: FEB 2 8 2018

In re: Eriel De Jesus ARREAZA-OLIVA a.k.a.Eriel Jesus Arriaza a.k.a. Eriel Arreaza Oliva

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IN REMOVAL PRO CEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Marshall Whitehead, Esquire

ON BEHALF OF OHS: Ariel I.Worth

Assistant Chief Counsel

APPLICATION: Termination

The Department of Homeland Security (OHS) appeals from the Immigration Judge's
May 31, 2017, decision terminating proceedings. The appeal will be dismissed.

We review Immigration Judges' findings of fact, including the determination of credibility,

under a clearly erroneous standard. 8 C.F.R. § 1003.l(d)(3)(i). We review questions of law,
including whether the parties have met the relevant burdens of proof, and issues of discretion under
a de novo standard. 8 C.F.R. § l 003. l(d)(3)(ii).

The respondent is a native and citizen of Guatemala and a lawful permanent resident of the
United States. He was placed into these removal proceedings via service of a Notice to Appear
charging him with being removable under section 237(a)(2)(B)(i) of the Immigration and
Nationality Act, 8 U.S.C.§ 1227(a)(2)(B)(i), as an alien convicted of violating a law of any State,
the United States, or a foreign country relating to a controlled substance (Exh. l). The OHS bears
the burden to establish, by clear and convincing evidence, that the respondent is removable as
charged. See section 240(c)(3)(A) of the Act.

At issue, the parties agree, is whether the respondent's 2006 conviction for possession of drug
paraphernalia in violation of section 13-3415(A) of the Arizona Revised Statutes (hereafter
"section 13-341 S(A)") is "a violation of ...any law or regulation of a State ...relating to a
controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C.
§ 802))."

At the time of the respondent's conviction, section 13-3415(A) provided as follows:

It is unlawful for any person to use, or to possess with intent to use, 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 a drug in violation of this chapter. Any person
who violates this subsection is guilty of a class 6 felony.

Ariz.Rev.Stat§ 13-3415(A). For purposes of this section, the term "drug" is defined to mean

Cite as: Eriel De Jesus Arreaza-Oliva, A042 174 443 (BIA Feb. 28, 2018)
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.. �042 174 443

mean "any narcotic drug, dangerous drug, marijuana or peyote." See Ariz. Rev. Stat.
§ l 3-34 l 5(F)( l ). In turn, the terms "narcotic drug" and "dangerous drug" are defined by reference
to long lists of controlled substances. See Ariz. Rev. Stat. §§ 13-3401(6), (20).

According to the Supreme Court, the requirements of the Act's controlled substance
removability are "satisfied when the elements that make up the state crime of conviction relate to

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a federally controlled substance." Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015) (emphasis
added). Thus, a conviction for possession of drug paraphernalia supports a finding of removability
under section 237(a)(2)(B)(i) if (and only if) an "element" of the drug paraphernalia statute is
connected to a substance listed in the Federal controlled substance schedules. Id. at 1991.

There is no dispute that section l 3-3415(A) is broader than section 237(a)(2)(B)(i) of the Act,
because Arizona's definitions of "narcotic drug" and "dangerous drug" are categorically broader
than the federal definition of a "controlled substance." See Alvarado v. Holder, 759 F.3d 1121,
1130 (9th Cir. 2014). See OHS Brief at 7-8. Thus, the respondent's conviction cannot render him
removable unless the OHS demonstrates that the statute is "divisible," and that consideration of
the respondent's conviction record would indicate that the "drug" that he possessed is a
federally-controlled substance. In removal proceedings, we evaluate the divisibility of criminal
statutes by employing the standards set forth in Mathis v. United States, 136 S. Ct. 2243 (2016),
and Descamps v. United States, 133 S. Ct. 2276 (2013). See Matter of Chairez, 27 I&N Dec. 21
(BIA 2017).

By its terms, section l 3-3415(A) requires proof beyond a reasonable doubt that the accused
possessed paraphernalia with the intent to use it as a means of "plant[ing], propagat[ing], [etc.] . .
. . a drug." Under Mathis and Descamps, the divisibility of section l 3-34 l 5(A) thus depends upon
whether the identity of the particular "drug" with which the paraphernalia is to be used is an
"element" of the offense--i.e., a fact that must be proven to the jury, unanimously and beyond a
reasonable doubt, in order to convict--or merely a "brute fact" about which the jury can disagree
while still rendering a guilty verdict. If the former--if, that is, all members of an Arizona jury
would need to agree that the accused intended to use the paraphernalia to "plant, propagate," etc.,
one specific drug to the exclusion of all others before rendering a guilty verdict--then section
l 3-34 l 5(A) is divisible and the factfinder can undertake a modified categorical inquiry. But if the
latter--if, that is, the jurors could render a guilty verdict even if some of them thought the accused
intended to use the paraphernalia to ingest cocaine while others thought the accused intended to
use it to ingest heroin)--then section l 3-34 l 5(A) is indivisible and a modified categorical inquiry
is impermissible.

On its face, the language of section 13-3415(A) does not specify whether the identity of the
"drug" with which the paraphernalia is to be used is an "element" of the offense or merely a "brute
fact," although the Arizona pattern jury instruction pertaining to section 13-3415(A) appears to
contemplate that the particular drug will be specified. See RAJI (Criminal) STCI 34.15 (3d ed.);
accord Almanza-Arenas v. Lynch, 815 F.3d 469, 479-482 & nn.16, 21 (9th Cir. 2016) (en bane)
(assessing divisibility by looking to the convicting state's pattern jury instructions). Nevertheless,
these jury instructions are not dispositive to our inquiry for two reasons. First, the jury instructions
are persuasive rather than binding authority. See State v. Logan, 30 P.3d 631, 633 (Ariz. 2001)
(since 1996, Arizona jury instructions are created by bar association and do not bear approval of
Arizona Supreme Court). Second, Arizona case law is not consistent with a conclusion that a jury

Cite as: Eriel De Jesus Arreaza-Oliva, A042 174 443 (BIA Feb. 28, 2018)
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A042 174 443

must unanimously agree on which precise drug supports a conviction under at least some Arizona
drug-related statutes. In State v. Lodge, No. 2 CA-CR 2014-0110, 2015 WL 164070, at 4-6
(Ariz. Ct. App. Jan. 14, 2015) (unpublished), the Arizona Court of Appeals upheld a section
l 3-34 l 5(A) conviction despite the fact that the jury instruction did not require a connection
between the paraphernalia and a specific drug, even though the evidence offered at trial was
consistent with the defendant's use of some paraphernalia associated with methamphetamine and

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other paraphernalia associated with marijuana. In a similar context, in State v. Prescott, No. 1
CA-CR 15-0188, 2016 WL 611656, at 2 (Ariz. Ct. App. Feb. 16, 2016) (unpublished), the court
held that possession or sale of a dangerous drug under Ariz. Rev. Stat. § 13-3407(A) is "one crime,
regardless of whether the drug possessed or sold is methamphetamine, MDMA, or any other
substance the statutes define as a dangerous drug." The court specifically stated that a "defendant
is not entitled to a unanimous verdict on the precise manner in which the [offense] was committed."
Id. at 2. These opinions are consistent with the Ninth Circuit's view that the identity of a controlled
substance is not an element of other Arizona drug offenses. See Vera-Valdevinos v. Lynch,
649 F. App'x 597, 598 & n. l (9th Cir. 2016) (holding that Ariz. Rev. Stat. § 13-3408--which
prohibits possessing, selling, manufactwing, administering, procuring, transporting, importing,
and offering to transport a "narcotic drug"--is overbroad and indivisible vis-a-vis section
10 l (a)(43)(B) of the Act because an Arizona jury need not make any finding of fact with respect
to the identity of the particular drug at issue).

Although we note that, as the DHS argues, there are cases involving a prosecution under
section 13-3415 in which the jury was instructed to connect the paraphernalia to a particular drug,
we do not find that the overall state of the law is one that definitively reflects that the relevant
statute is divisible. See, e.g., State v. Kelly, No. 1 CA-CR 14-0671, 2015 WL 4538447, at 3
(Ariz. Ct. App. July 28, 2015). We further disagree that we should look at the respondent's plea
agreement in order to discern whether the identity of the drug is an element of the Arizona statute
at issue. While it is true that in Mathis v. United States, taking a "peek" at conviction documents
was discussed with approval for certain "limited purpose[s]," here, the inclusion of a certain drug
in the plea agreement does not assist us in determining whether the identity of the drug is an
element of the offense defined by section 13-3415(A). See Mathis v. United States, 136 S. Ct.
at 2256; Matter ofChairez, 27 I&N Dec. at 24 (if an admission in a plea agreement is not tethered
to any fact charged in the amended information, that admission does not establish the divisibility
of a statute).

We are unpersuaded by the DHS's argument that we should construe the "relating to" language
in section 237(a)(2)(B)(i) by considering whether the underlying statute proscribes possession of
a "drug, controlled substance, narcotic, or similar term" and then automatically consulting the
record of conviction to determine if the underlying drug is on the federal schedule. See DHS's
Brief at 19-32. Such an approach is precluded by Mellouli v. Lynch, in which the court stated that
construction of section 237(a)(2)(B)(i) "must be faithful to the text, which limits the meaning of
'controlled substance,' for removal purposes, to the substances controlled" under the federal
schedules. Mellouli v. Lynch, 135 S. Ct. at 1983. We are also unpersuaded by the DHS's
contention that the respondent's conviction is not categorically overbroad because he has not
established that there is a "realistic probability" that Arizona would actually prosecute people for
possession of paraphernalia relating to non-federally controlled substances. See DHS Brief
at 17-19. The DHS's position finds support in Matter ofFerreira, 26 l&N Dec. 415 (BIA 2014).
However, the United States Court of Appeals for the Ninth Circuit--in whose jurisdiction this

3
Cite as: Eriel De Jesus Arreaza-Oliva, A042 174 443 (BIA Feb. 28, 2018)
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'· A042 -174 443

matter arises--has subsequently clarified that "when a 'state statute's greater breadth is evident
from its text," an alien "need not point to an actual case applying the statute of conviction in a
nongeneric manner" in order to establish a "realistic probability." United States v. Werle, 815 F.3d
614, 622-23 (9th Cir. 2016) (quoting Chavez-So/is v. Lynch, 803 F.3d 1004, 1010 (9th Cir. 2015)
(quoting in tum United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007))). Applying Ninth
Circuit law, we conclude that the "greater breadth" of section 13-3415(A) is evident from its text.

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For the foregoing reasons, we agree with the Immigration Judge that the respondent's
conviction for possession of drug paraphernalia under section l 3-34 l 5(A) is overbroad and
indivisible relative to the definition of a controlled substance offense, and thus cannot serve as a
predicate for his removal under section 237(a)(2)(B)(i) of the Act--the sole charge of removability.
Because the OHS cannot meet its burden of proof with regard to this charge, the Immigration
Judge properly terminated these removal proceedings. See Matter of Sanchez-Herbert, 26 I&N
Dec. 43, 44 (BIA 2012). Accordingly, the following order will be entered.

ORDER: The DHS's appeal is dismissed.

FOR THE BOARD

Cite as: Eriel De Jesus Arreaza-Oliva, A042 174 443 (BIA Feb. 28, 2018)
 !

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
PHOENIX, ARIZONA

IN THE MATTER OF: §

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§ IN REMOVAL PROCEEDINGS
ERIEL PE JESUS ARREAZA-OLIVA §
A042-174- 443 §
§ MASTERHRG:MAY9,207
1 AT8:30AM
§
§
§
I § HON. JUDGE: JOHN W. RICHARDSON
RESPONDENT §

ORDER

Upon C:onsideration of the Respondent's Motion to Terminate Removal Proceedings, it is

HEREaY ORDERED that the term.ination of these Removal Proceedings is:

�pRANTED
.CJ DENIED because:
'u DHS does not oppose the motion.
D µe respondent does not oppose the motion.
D A response to the motion has not been filed with the court.
� Good cause has been established for the motion.
0 The court agrees with the reasons stated in the opposition to the motion.
D 7be motion is untimely per .
D The Respondent's Brief is Due On: ; the Gov�mmeo.t's Brief is Due
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HONO�LEJUDGE:JOHN W. RICHARDS�ft.:;l/ .

Certificate of Service
·

This dotum.ent was served b� D Personal Service ·

To: OAJien �/O Cus todial O ffu:er iB..AJi�ey/Rep. �CE

: JUN 0 11017 -
Date: By: Court Staff --
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