Jorge Bueno-Muela v. Jefferson B. Sessions, III

United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-1267 ___________________________ Jorge Bueno-Muela, lllllllllllllllllllllPetitioner, v. Jefferson B. Sessions, III, Attorney General of the United States, lllllllllllllllllllllRespondent. ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: November 14, 2017 Filed: June 27, 2018 ____________ Before COLLOTON and GRUENDER, Circuit Judges, and HOLMES,1 District Judge. ____________ COLLOTON, Circuit Judge. Jorge Bueno-Muela, a citizen of Mexico, petitions for review of a decision that he is removable from the United States. The Board of Immigration Appeals 1 The Honorable P.K. Holmes, III, Chief Judge, United States District Court for the Western District of Arkansas, sitting by designation. concluded that Bueno-Muela’s prior conviction in Missouri for possession of a controlled substance made him removable. We agree with the Board and therefore deny the petition. Bueno-Muela was admitted to the United States on a visa in 2005 and became a lawful permanent resident in 2012. In November 2015, he pleaded guilty to possession of methamphetamine, in violation of Mo. Rev. Stat. § 195.202. The government commenced removal proceedings under 8 U.S.C. § 1227(a)(2)(B)(i). Under that section, an alien is removable if he has been convicted of violating “any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” Section 802 defines “controlled substance” as a “drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of [21 U.S.C. § 812].” 21 U.S.C. § 802(6). An immigration judge concluded that Bueno-Muela’s state conviction made him removable, and the Board of Immigration Appeals dismissed Bueno-Muela’s administrative appeal. The Board reasoned that the question of removability turned on whether the elements of Bueno-Muela’s state offense were a categorical match to the elements of § 1227(a)(2)(B)(i). See Descamps v. United States, 570 U.S. 254, 261 (2013). After determining that § 195.202 was overbroad but divisible, the Board consulted Bueno-Muela’s record of conviction and concluded that Bueno-Muela was convicted of a controlled substance offense within the meaning of the federal statute. Bueno-Muela disputes this conclusion, and we review the Board’s legal determination de novo. At the time of Bueno-Muela’s offense, Mo. Rev. Stat. § 195.202 made it a crime for a person to “possess or have under his control a controlled substance.” Id. § 195.202.1 (2015). A separate section, § 195.010(5), defined “controlled substance” with reference to five drug schedules set forth in § 195.017. Bueno-Muela argues -2- that § 195.202 is broader than the federal removal statute because it criminalizes the possession of two controlled substances—salvia divinorum and ephedrine— that are not listed in the federal drug schedules. See § 195.017.2(4), (jj), 195.017.8(6). He further asserts that § 195.202 is indivisible between removable and non-removable offenses, because the specific controlled substance is a means, not an element, of the state offense. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). On this view, Bueno-Muela’s conviction would not make him removable. In Martinez ...

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