Juan Martinez v. Jefferson B. Sessions, III

United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-4242 ___________________________ Juan Lemus Martinez, 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. Juan Lemus Martinez, 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 Lemus Martinez’s prior conviction in Missouri for possession of a controlled substance with intent to deliver made him removable. We agree with the Board and therefore deny the petition. I. Lemus Martinez was admitted to the United States on a visa in 2004 and became a lawful permanent resident in 2006. In March 2015, he pleaded guilty in Missouri state court to possession of methamphetamine with intent to deliver, in violation of Mo. Rev. Stat. § 195.211. The government commenced removal proceedings against Lemus Martinez on two grounds—namely, that he was convicted of a controlled substance offense and an aggravated felony. First, under 8 U.S.C. § 1227(a)(2)(B)(i), an alien is subject to removal 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).” Second, according to § 1227(a)(2)(A)(iii), an alien is removable if he has been convicted of an “aggravated felony,” which includes “illicit trafficking in a controlled substance (as defined in section 802 of Title 21).” 8 U.S.C. § 1101(a)(43)(B). 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). To determine whether a state drug conviction is grounds for removal, the adjudicator is required to apply the so-called “categorical approach.” That approach calls for a comparison of the elements of the state offense with removable offenses defined by federal law. Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). The adjudicator must assume that the state conviction rested upon nothing more than the least of the acts criminalized by the state statute and then determine whether that state statute fits within the removable offense identified by federal law. Id.; Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013). -2- Where a state statute encompasses the same conduct or less conduct than the federal offense, a conviction under the state statute will be a categorical match. Descamps v. United States, 570 U.S. 254, 261 (2013). But where a state statute criminalizes more conduct than the removable offense, it is overbroad and does not categorically make the offender removable. In that case, however, if a statute includes multiple, alternative elements that create several different ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals