NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 9 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERTO MADRID-FARFAN, No. 13-73048 Petitioner, Agency No. A092-444-197 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 15, 2018 San Francisco, California Before: SCHROEDER, EBEL,** and GOULD, Circuit Judges. Roberto Madrid-Farfan (Petitioner) seeks review of the Board of Immigration Appeals’ (BIA) holding that because of a 1999 conviction under Arizona Revised Statutes (ARS) § 13-3408 he is removable and ineligible for discretionary relief—including waiver of inadmissibility and adjustment of status. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. Petitioner argues that ARS § 13-3408 is not a categorical controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i), and that the BIA erred in holding that he was ineligible for discretionary relief.1 We hold that because ARS § 13-3408 is overbroad and indivisible with regard to drug type, Petitioner was not convicted of a categorical controlled substance offense. We grant the petition and remand for further proceedings consistent with our holding here. The parties agree that ARS § 13-3408 is overbroad because it criminalizes substances that are not on the federal controlled substance lists. See 21 U.S.C. §§ 802(6), 812. But the parties dispute whether the statute is divisible by drug type. A statute is divisible if it sets out alternative elements of what are effectively separate crimes, rather than merely describing different “means” for accomplishing a single crime. United States v. Martinez-Lopez, 864 F.3d 1034, 1038–39 (9th Cir. 2017) (en banc). ARS § 13-3408 is indivisible with regard to drug type if a jury could disagree about the type of drug a defendant possessed and still convict. Descamps v. United States, 570 U.S. 254, 272–73 (2013); Lopez-Valencia v. Lynch, 798 F.3d 863, 868–69 (9th Cir. 2015). Arizona courts have upheld convictions even when the prosecution did not prove the specific drug type. State v. Prescott, No. 1 CA-CR 15-0188, 2016 Ariz. 1 Petitioner does not challenge the holding that he is otherwise removable as an alien present without lawful status under 8 U.S.C. § 1227(a)(1)(B). 2 App. Unpub. LEXIS 179, at *3 (Feb. 16, 2016) (upholding conviction where it was proven that the defendant knowingly possessed a controlled substance, but not proven which substance that was); State v. Castorina, No. 1 CA-CR 08-0816, 2010 Ariz. App. Unpub. LEXIS 588, at *4 (June 17, 2010) ( “[I]t is sufficient for the state to show that defendant knew he possessed a narcotic or dangerous drug; neither our statutes nor case law require the state to prove that defendant knew which particular drug defined under our laws as a ‘dangerous’ drug or ‘narcotic’ drug he knew he possessed”).2 ...
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