U.S.

Department of Justice

Executive Office for Immigration Review

B,oard of Immigration Appeals

Office of the Clerk

5107 leesburg Pike, Suite 2000

Falls Church. Virginia 220./1

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Gilman, Ryan C. DHS/ICE Office of Chief Counsel - AUR
Dickson Law Group 12445 East Caley Avenue
605 S. Tejon St Centennial, CO 80111-5663
Colorado Springs, CO 80903

Name: HOLOD, KEVIN MARK A 040-218-117

Date of this notice: 7/9/2020

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

Sincerely,

DOtuuL Ct1JVL)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.

Userteam: Docket

For more unpublished decisions, visit

www.irac.net/unpublished/index

Cite as: Kevin Mark Holod, A040 218 117 (BIA July 9, 2020)
U.S. Department of Justice Decision ofthe Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A040-2 l 8-l l 7 - Aurora, CO Date: JUL -9 2020

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In re: Kevin Mark HOLOD

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Ryan C. Gilman, Esquire

ON BEHALF OF DHS: Carmen F. Rickard

Assistant Chief Counsel

APPLICATION: Termination

The respondent is a native of Germany, a citizen of the United Kingdom, and a lawful
permanent resident of the United States. The Department of Homeland Security (DHS) appeals
from the Immigration Judge's January 14, 2020, terminating the respondent's removal
proceedings. The DHS's appeal will be dismissed.

This Board reviews the findings of fact, including the determination of credibility, made by
the Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We
review all other issues, including issues of law, discretion, or judgment, under the de novo
standard. 8 C.F .R. § I 003 .1 (d)(3)(ii).

On June 22, 2015, the respondent was convicted of unlawful possession of a controlled
substance (methamphetamine) in violation of Colo. Rev. Stat. § 18-18-403.5(1), (2)(a) (Exh. 1).
Based on this conviction, the DHS charged the respondent as 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 a violation of state law relating to a controlled substance (IJ at 1; Exh. 1).

At the time of the respondent's conviction, Colo. Rev. Stat. § 18-18-403.5 (2014) provided
that:

(1) Except as authorized by part 1 or 3 of article 42.5 of title 12, C.R.S., part 2 of
article 80 of title 27, C.R.S., section 18-1-711, or part 2 or 3 of this article, it is
unlawful for a person knowingly to possess a controlled substance.

(2) A person who violates subsection (1) of this section by possessing:

(a) Any material, compound, mixture, or preparation that contains any quantity
of flunitrazepam, ketamine, cathinones, or a controlled substance listed in
schedule I or II of part 2 of this article commits a level 4 drug felony.

(b) Deleted by Laws 2013, Ch. 333, § 8, eff. Oct. 1, 2013.

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A040-218-117

(c) Any material, compound, mixture, or preparation that contains any quantity
of a controlled substance listed in schedule III, IV, or V of part 2 of this
article except flunitrazepam or ketamine commits a level 1 drug
misdemeanor.

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The Immigration Judge determined that the respondent's conviction under Colo. Rev. Stat.
§ 18-18-403.5( 1), (2)( a) is not a controlled substance violation in light of recent jurisprudence from
the controlling United States Court of Appeals for the Tenth Circuit. In Arellano v. Barr, 784 F.
App'x 609 (10th Cir. 2019), the Tenth Circuit held that a similar drug statute, Colo. Rev. Stat. §
18-18-405(2)(d)(I), was overbroad, as Colorado outlawed at least one substance that the Federal
government did not. Id. at 612. The Tenth Circuit further found that the Colorado statute applied
a different offense level and penalty for each controlled substance schedule. Id. Therefore, the
Tenth Circuit concluded that the controlled substance schedules - rather than the individual
substances - were elements that carried different punishments. Id. at 612-13; see also Mathis v.
United States, 136 S. Ct. 2246, 2256 (2016) ("If statutory alternatives carry different punishments,
then ... they must be elements."); Apprendi v. New Jersey, 530 U.S. 466,490 (2000) (requiring a
jury to agree on any circumstance increasing a statutory penalty).

Applying the Tenth Circuit's rationale in Arellano, the Immigration Judge found that Colo.
Rev. Stat. § 18-18-403.5 has two elements - comprised of the controlled substance schedules -
that carry different offense levels and penalties (IJ at 3). The Immigration Judge also found that
Colorado's controlled substance schedule was broader than the corresponding Federal schedule
because schedule II of the Colorado controlled substances schedules reaches morpholine, a
substance not controlled by the Federal Controlled Substances Act (IJ at 3). Compare Colo. Rev.
Stat.§ 18-18-204(2)(f)(II)(D), with 21 U.S.C. § 812 sched. II. Because the respondent's statute of
conviction was not a categorical match to the federal schedules, the Immigration Judge found that
he was not removable under section 237(a)(2)(B)(i) of the Act (IJ at 3). 1

We agree with the Immigration Judge that the respondent's 2015 conviction is not a controlled
substance offense rendering him removable under section 237(a)(2)(B)(i) of the Act for the reasons
stated in the Immigration Judge's decision. We acknowledge that Arellano v. Barr is an
unpublished case and is therefore not binding precedent (DHS's Br. at 4). See generally United
States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005) (discussing unpublished decisions).

1
We have held that "even where a State statute on its face covers a ... [controlled] substance not
included in a Federal statute's generic definition, there must be a realistic probability that the State
would prosecute conduct falling outside the generic crime in order to defeat a charge of
removability." Matter of Ferreira, 26 l&N Dec. 415, 420-21 (BIA 2014) (noting that ''the
application of the realistic probability test is necessary to prevent the categorical approach from
eliminating the immigration consequences for many State drug offenses"). However, we cannot
apply this holding in the Tenth Circuit, the jurisdiction in which this case arises, because that court
has held that the plain text of a statute creates a realistic probability that the State would use the
statute to punish non-generic conduct. See United States v. Titties, 852 F.3d 1257, 1274-75 & n.23
(10th Cir. 2017); see also Matter of Navarro Guadarrama, 27 I&N Dec. 560, 567 (BIA 2019)
(reaffirming our holding in Ferreira but declining to apply it in "any circuit that [has] binding legal
authority requiring a contrary interpretation").

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A040-218-117

However, as Arellano analyzes how the categorical approach is applied to criminal statutes
involving drugs in Colorado, we conclude that the decision is persuasive and instructive as to what
the Tenth Circuit would conclude in this case. Therefore, we are persuaded that its rationale should
be followed in this case. See id. (explaining that unpublished decisions may be relied on if they
have "persuasive value with respect to a material issue in a case and would assist the court in its

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disposition").

On appeal, the DHS argues that Arellano is inapplicable in the instant matter. Specifically, the
DHS maintains that the statute at issue in Arellano was meaningfully different, as it accorded each
Colorado controlled substance schedule with a different penalty (DHS's Br. at 5-6). We disagree.
As noted by the Immigration Judge, under Colo. Rev. Stat. § 18-18-403.5(2), possession of a
controlled substance under schedule I or II is a level 4 drug felony, whereas possession of a
controlled substance under schedules III-Vis a level 1 drug misdemeanor (IJ at 3). Thus, the drug
schedules listed in Colo. Rev. Stat. § 18-18-403.5(2) are elements because they are statutory
alternatives that carry different offense levels and penalties (IJ at 3). See Arellano v. Barr, 784
F. App'x at 612-13.

Based on the foregoing, we agree with the Immigration Judge the respondent is not removable
under section 237(a)(2)(B)(i) of the Act. Accordingly, the following order will be entered.

ORDER: The DHS's appeal is dismissed.

FOR THE BOARD

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Cite as: Kevin Mark Holod, A040 218 117 (BIA July 9, 2020)