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Villavicencio v. Sessions

United States Court of Appeals, Ninth Circuit

January 5, 2018

Julio Cesar Villavicencio, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted April 20, 2017 San Francisco, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A090-179-539

          Kari 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.

          Dawn 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 Respondent.

          Robert 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.

         SUMMARY[**]

         Immigration

         The 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 indivisible.

         The 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 indivisible.

         The 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.

          OPINION

          RAWLINSON, CIRCUIT JUDGE.

         Petitioner 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).[1] Villavicencio maintains that the state crimes underlying his removal, Nevada Revised Statutes (N.R.S.) §§ 199.480[2] and 454.351[3] 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.

         I. BACKGROUND

         Villavicencio 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.

         Three 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.

         The 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.

         Villavicencio appealed the IJ's decision to the Board of Immigration Appeals (BIA). The BIA affirmed the IJ's removability determination, and ...


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