United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-2638 ___________________________ Elizabeth Rachael Bannister lllllllllllllllllllllPetitioner v. William P. Barr, Attorney General of the United States lllllllllllllllllllllRespondent ___________________________ No. 18-2715 ___________________________ Miguel Angel Fasio lllllllllllllllllllllPetitioner v. William P. Barr, Attorney General of the United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: October 16, 2019 Filed:May 26, 2020 [Published] ____________ Before COLLOTON, BEAM, and KELLY, Circuit Judges. ____________ PER CURIAM. In these consolidated cases, Petitioners Elizabeth Bannister and Miguel Fasio petition for review of decisions by the Board of Immigration Appeals (BIA) affirming their orders of removal. Because Petitioners’ arguments are foreclosed by this court’s precedent, we deny their petitions for review. I. Petitioners are lawful permanent residents who were convicted of fifth-degree possession of a controlled substance in Minnesota state court. The charging documents in their criminal cases alleged they had possessed methamphetamine. Bannister pleaded guilty in two separate cases to violating Minn. Stat. § 152.025, subd. 2(a)(1) (2015). Fasio pleaded guilty to violating Minn. Stat. § 152.025, subd. 2(b)(1) (2015), which is similar to subdivision (a)(1), but provides heightened penalties for a “subsequent controlled substance conviction.” See Minn. Stat. § 152.025, subd. 2(b)(1) (2015). Following Petitioners’ convictions, the Department of Homeland Security (DHS) initiated removal proceedings, charging them as removable under § 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA). That section provides that a noncitizen is subject to removal if, “at any time after admission,” he or she has been convicted of violating “any law or regulation of a State . . . relating -2- to a controlled substance (as defined in section 802 of Title 21) . . . .” 8 U.S.C. § 1227(a)(2)(B)(I). The same Immigration Judge (IJ) presided over both Petitioners’ removal proceedings. The IJ determined that DHS had not met its burden to establish Petitioners’ removability under INA § 237(a)(2)(B)(i) because Minnesota’s fifth- degree possession statute is categorically overbroad and indivisible. The BIA overturned the IJ’s decisions. It agreed that Minnesota’s fifth-degree possession statute is overbroad because it criminalizes about 200 more substances than the federal Controlled Substances Act. But the BIA decided the Minnesota statute is divisible because the identity of the specific controlled substance is an element of the offense. The BIA next determined that, under the modified categorical approach, the conviction records in Petitioners’ cases established that they had possessed methamphetamine, which is a federally controlled substance. The BIA remanded to the IJ, who then found Petitioners removable as charged. The BIA affirmed, and Petitioners timely sought review in this court. They argue that a violation of Minnesota’s fifth-degree possession statute is not a removable offense. II. We have jurisdiction to review questions of law and constitutional claims presented by noncitizens ordered removed from this country. Cherichel v. Holder, 591 F.3d 1002, 1009 (8th Cir. 2010). Whether a violation of a state statute qualifies as a removable offense under INA § 237(a)(2)(B)(i) is a question of law we review de ...
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