FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ELISIO ATENIA LORENZO, No. 15-70814 Petitioner, Agency No. v. A038-467-916 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 15, 2018 Pasadena, California Filed August 29, 2018 Before: Sidney R. Thomas, Chief Judge, and Raymond C. Fisher and Carlos T. Bea, Circuit Judges. * Opinion by Judge Fisher * 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. 2 ATENIA LORENZO V. SESSIONS SUMMARY ** Immigration The panel granted Elisio Atenia Lorenzo’s petition for review of a decision of the Board of Immigration Appeals that found Lorenzo removable for a controlled substance offense, holding that: 1) where a state statute contains two layers of disjunctive lists, the analysis outlined in Taylor v. United States, 495 U.S. 575 (1990), for applying the categorical approach, applies to both layers of the statute and must be performed twice; and 2) a methamphetamine conviction under California Health & Safety Code §§ 11378 or 11379(a) does not qualify as a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i), and remanded. The panel explained that § 11378 makes it unlawful to possess for sale a controlled substance specified in certain subdivisions of California Health & Safety Code § 11055, and that § 11379(a) makes it unlawful to transport, import, sell, furnish, administer, or give away a controlled substance specified in certain subdivisions of § 11055. Section 11055, in turn, identifies a list of substances, including methamphetamine and its isomers. The Controlled Substances Act likewise includes methamphetamine and its isomers. However, the panel concluded that the California definition of methamphetamine is broader than the federal definition because the California definition includes both ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ATENIA LORENZO V. SESSIONS 3 geometric and optical isomers of methamphetamine, while the CSA includes optical isomers, but not geometric isomers. Accordingly, the panel held that the California definition is overbroad under the first step of the categorical approach. The panel recognized that, in applying the first step of the categorical approach in this case, it had to examine a disjunctive list within another disjunctive list. The panel explained that it was therefore not enough to conclude, as this court had in United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc), that California’s disjunctive list of controlled substances is overbroad but divisible. Rather, in this instance, another Taylor analysis – addressing whether California’s disjunctive list of types of methamphetamine is overbroad and, if so, divisible – was also required. Next, the panel held that the overbroad methamphetamine element of §§ 11378 and 11379(a) is not divisible, observing that, under California law, geometric ...
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