NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELISIO ATENIA LORENZO, No. 15-70814 Petitioner, Agency No. A038-467-916 v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 15, 2018 Pasadena, California Before: THOMAS, Chief Judge, and FISHER and BEA, Circuit Judges.** Elisio Atenia Lorenzo petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his motion to terminate his removal * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** This case was submitted to a panel that included Judge Stephen Reinhardt. Following Judge Reinhardt’s death, Judge Bea was drawn by lot to replace him. Ninth Circuit General Order 3.2h. Judge Bea has reviewed all case materials. proceedings and ordering him removed. We have jurisdiction under 8 U.S.C. § 1252, and – on the record before us in this case – we grant the petition and remand.1 I In 2013, Lorenzo pled nolo contendere to possession of methamphetamine, in violation of California Health and Safety Code § 11378, and transportation of methamphetamine, in violation of California Health and Safety Code § 11379(a). The record of conviction does not identify the type of methamphetamine involved, and, under California law, “methamphetamine” is broadly defined to include “[m]ethamphetamine, its salts, isomers, and salts of its isomers.” Id. § 11055(d)(2). Health and Safety Code § 11033, in turn, provides that the term “isomer,” unless otherwise defined, “includes optical and geometrical (diastereomeric) isomers.” The Department of Homeland Security initiated removal proceedings against Lorenzo based on his 2013 state convictions. The notice to appear charged Lorenzo with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), on the ground that his § 11379(a) conviction constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Alternatively, and as relevant here, the notice to appear charged 1 We also deny the government’s petition for panel rehearing and motion for judicial notice for the reasons discussed below. 2 Lorenzo with removability under 8 U.S.C. § 1227(a)(2)(B)(i), on the ground that his §§ 11378 and 11379(a) convictions constituted violations of state law “relating to a controlled substance.” Lorenzo moved to terminate removal proceedings, contending his methamphetamine convictions did not necessarily involve a controlled substance as defined by federal law. Specifically, he argued the definition of methamphetamine under California law is broader than the definition of methamphetamine under the federal Controlled Substances Act (CSA), because the CSA’s definition includes only optical isomers of methamphetamine, whereas California law includes both optical and geometric isomers of methamphetamine. An immigration judge (IJ) denied Lorenzo’s motion and ordered him removed, concluding that Lorenzo’s convictions qualified as controlled substance offenses under 8 U.S.C. § 1227(a)(2)(B)(i). The BIA adopted and affirmed the IJ’s decision under Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), while also providing its own analysis. Lorenzo timely ...
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