FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JAIME LAZO, AKA Jaime Lazo No. 14-73182 Venegas, Petitioner, Agency No. A012-666-503 v. ROBERT M. WILKINSON, Acting OPINION Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 7, 2020* Pasadena, California Filed February 26, 2021 Before: Marsha S. Berzon and Daniel P. Collins, Circuit Judges, and Gary S. Katzmann, ** Judge. Opinion by Judge Collins * The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). ** The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. 2 LAZO V. WILKINSON SUMMARY *** Immigration Denying Jaime Lazo’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) California Health and Safety Code § 11350, possession of a controlled substance, is divisible as to controlled substance; and 2) because Lazo’s conviction was for cocaine, a federal controlled substance, Lazo was properly ordered removed for an offense “relating to a controlled substance” under Immigration and Nationality Act § 237(A)(2)(B)(i). The panel observed that § 11350 is not categorically an offense “relating to a controlled substance” because California’s relevant list of controlled substances is overbroad in comparison to the Controlled Substances Act (“CSA”). However, the panel concluded that Lazo’s conviction qualified as an offense “relating to controlled substance” under the so-called “modified categorical” approach. In so concluding, the panel held that § 11350 is divisible as to controlled substance, observing that this court in United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc), held that California Health and Safety Code § 11352 is divisible as to controlled substance. The panel concluded that Martinez-Lopez’s reasoning applies equally to § 11350, explaining that: 1) there is no meaningful difference between *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LAZO V. WILKINSON 3 the text of the statutes; 2) the same California caselaw, which Martinez-Lopez found dispositive, applies equally to § 11350; and 3) just as with § 11352, the pattern jury instruction for § 11350 requires that the controlled substance be identified in the instructions and that, in order to convict, the jury must unanimously find that the defendant possessed that substance. The panel further concluded that Lazo’s conviction documents unambiguously established that his conviction was for cocaine, a controlled substance under the CSA. Therefore, the panel concluded that Lazo’s conviction was a violation of law “relating to a controlled substance” that rendered him removable. COUNSEL Carlos A. Cruz, Alhambra, California, for Petitioner. Melissa Neiman-Kelting and M. Jocelyn Lopez Wright, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. OPINION COLLINS, Circuit Judge: Jaime Lazo, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration ...
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