FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GUSTAVO TEJEDA, No.13-74391 Petitioner, Agency No. v. A094-875-502 WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 23, 2019 Pasadena, California Filed June 8, 2020 Before: Andrew J. Kleinfeld and Consuelo M. Callahan, Circuit Judges, and Jane A. Restani,* Judge. Per Curiam Opinion * The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 2 TEJEDA V. BARR SUMMARY** Immigration Denying Gustavo Tejeda’s petition for review of a decision of the Board of Immigration Appeals, the panel held that a conviction for being under the influence of a controlled substance, in violation of California Health and Safety Code § 11550(a), is divisible with respect to controlled substance such that the modified categorical approach applies to determining whether a conviction under the statute is a controlled-substance offense as defined by federal law. In the language of the documents relating to Tejeda’s conviction, he was convicted of being under the influence of a controlled substance—amphetamines—in violation of Section 11550(a). The panel noted that the parties agreed that the California statute includes substances which are not prohibited by federal law and explained that, in United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc), the court held that the controlled-substance requirement of California Health and Safety Code § 11352 was divisible because, under state law, it established separate crimes for the various substances rather than alternative means of committing one offense. The panel concluded that the reasoning in Martinez-Lopez squarely applied here, explaining that Section 11550(a) incorporates controlled substances from the state schedules, the state law “separate crimes” holding cited by Martinez-Lopez applies, and the ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. TEJEDA V. BARR 3 state pattern jury instructions for Section 11550(a) require the jury to agree on the particular substance. Applying the modified categorical approach, the panel concluded that Tejeda’s plea agreement, the charging document, and the minute order are cognizable for modified- categorical-approach purposes and establish the elements of his offense. Further, the panel observed that the relevant substance here, amphetamine, is a controlled substance under federal law. Accordingly, the panel concluded that the modified categorical approach was applicable and satisfied here. The panel also rejected Tejeda’s argument that the actus reus aspect of Section 11550(a) is indivisible. The panel explained that, under 8 U.S.C. § 1227(a)(2)(B)(i), Tejeda’s conviction serves as a basis for his deportability if it is a conviction relating to a federally controlled substance, and that the Supreme Court has confirmed that the effect of “relating to” in this statute is to require a “direct link” between an alien’s crime of conviction and a particular federally controlled drug. The panel further explained that where, as here, the controlled-substance requirement of a state statute is ...
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