and Submitted April 20, 2017 San Francisco, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A090-179-539
E. Hong (argued), Supervising Attorney; Katherine Horigan
(argued) and Yara Kass-Gergi (argued), Certified Law
Students; Ninth Circuit Appellate Project, Boston College Law
School, Newton, Massachusetts; for Petitioner.
S. Conrad (argued) and Edward E. Wiggers, Senior Litigation
Counsel, Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C., for
M. Loeb and Thomas M. Bondy, Orrick Herrington &
Sutcliffe LLP, Washington, D.C.; Aaron W. Scherzer, Orrick
Herrington & Sutcliffe LLP, New York, New York; Brian P.
Goldman, Orrick Herrington & Sutcliffe LLP, San
Francisco, California; Jayashri Srikantiah and Lisa
Weissman-Ward, Immigrants' Rights Clinic, Mills Legal
Clinic, Stanford, California; Manuel Vargas and Andrew
Wachtenheim, Immigrant Defense Project, New York, New York;
for Amici Curiae Immigrant Defense Project, American
Immigration Lawyers Association, Asian Americans Advancing
Justice-Asian Law Caucus, Community Legal Services in East
Palo Alto, Detention Watch Network, Florence Immigrant and
Refugee Rights Project, Heartland Alliance's National
Immigrant Justice Center, Immigrant Legal Resource Center,
National Immigration Law Center, National Immigration Project
of the National Lawyers Guild, Northwest Immigrant Rights
Project, Public Counsel, U.C. Davis Immigration Law Clinic,
and Centro Legal de la Raza.
Before: Mary M. Schroeder and Johnnie B. Rawlinson, Circuit
Judges, and William H. Stafford, Jr., [*] District Judge.
panel granted Julio Cesar Villavicencio's petition for
review of the Board of Immigration Appeals decision,
concluding that Villavicencio was not removable for a
controlled substance offense under 8 U.S.C. §
1227(a)(2)(B)(i) because the statutes under which he was
convicted of conspiracy to possess drugs, Nevada Revised
Statutes §§ 199.480 and 454.351, are overbroad and
panel held that the Nevada conspiracy statute, NRS §
199.480, is overbroad when compared to the generic definition
of conspiracy because the Nevada statute lacks the requisite
"overt act" element. Therefore, the panel concluded
that the categorical approach may not be used to determine
removability. The panel also concluded that application of
the modified categorical approach is foreclosed because this
court has already determined that NRS § 199.480 is
panel further held that NRS § 454.351, which covers any
drug which may not be lawfully introduced into interstate
commerce under the Federal Food, Drug and Cosmetic Act, is
categorically overbroad relative to the substances controlled
under 21 U.S.C. § 802. The panel also concluded that,
although the Nevada statute lists multiple means of
violation, i.e., possessing, procuring, or
manufacturing, because jurors need not agree on the means of
the violation, the statute must still be regarded as
indivisible. Accordingly, the panel held that the statute
cannot be used as a predicate offense to support removal.
RAWLINSON, CIRCUIT JUDGE.
Julio Cesar Villavicencio seeks review of a decision from the
Board of Immigration Appeals (BIA) affirming findings of
removability and of ineligibility for cancellation of removal
made by an Immigration Judge (IJ). Villavicencio was removed
pursuant to the provisions of 8 U.S.C. §
1227(a)(2)(B)(i). Villavicencio maintains that the state
crimes underlying his removal, Nevada Revised Statutes
(N.R.S.) §§ 199.480 and 454.351 are not a
categorical match to the federal generic statutes because
they are overbroad and indivisible. We agree with
Villavicencio and GRANT his petition for review.
is a native and citizen of Mexico, who entered the United
States illegally in 1979 and adjusted his status to lawful
permanent resident in the following decade. On January 20,
2010, an information was filed in Nevada charging
Villavicencio with burglary and grand larceny under N.R.S.
§§ 205.060 and 205.220. The state subsequently
filed two amended informations containing the same charges,
and a third amended information charging Villavicencio solely
with grand larceny. A judgment of conviction was entered on
the grand larceny charge.
months before entry of the judgment of conviction on the
grand larceny charge, an information was filed in Nevada
charging Villavicencio with possession of a controlled
substance with intent to sell (N.R.S. 453.337), and sale of a
controlled substance (N.R.S. 453.321), identifying
methamphetamine as the controlled substance. An amended
information charged Villavicencio with conspiracy to possess
drugs that may not be introduced into interstate commerce
(N.R.S. 199.480 and N.R.S. 454.351), also identifying
methamphetamine as the controlled substance. Villavicencio
agreed to plead guilty to three conspiracy counts in two
separate cases. Judgments of conviction were entered in both
cases pursuant to the terms of the plea agreement.
Department of Homeland Security (DHS) subsequently served
Villavicencio with a Notice to Appear charging him with
removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for
having been convicted of an aggravated felony relating to a
theft offense, and under 8 U.S.C. § 1227(a)(2)(B)(i) for
having been convicted of a violation relating to a controlled
substance. At his removal proceedings, Villavicencio admitted
that he was not a citizen or national of the United States,
that he was a native and citizen of Mexico, and that his
status was adjusted to that of a lawful permanent resident.
Villavicencio denied that he was convicted of grand larceny
and that he was convicted of a conspiracy to possess drugs.
Nevertheless, the IJ found Villavicencio removable, noting
that the government had withdrawn the charge relating to the
theft conviction, leaving only the drug conspiracy charge as
the basis of removal.
appealed the IJ's decision to the Board of Immigration
Appeals (BIA). The BIA affirmed the IJ's removability
determination, and ...