Julio Villavicencio v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JULIO CESAR VILLAVICENCIO, No. 13-74324 Petitioner, Agency No. v. A090-179-539 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 20, 2017 San Francisco, California Filed January 5, 2018 Before: Mary M. Schroeder and Johnnie B. Rawlinson, Circuit Judges, and William H. Stafford, Jr.,* District Judge. Opinion by Judge Rawlinson * The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida, sitting by designation. 2 VILLAVICENCIO V. SESSIONS SUMMARY** Immigration The panel granted Julio Cesar Villavicencio’s petition for review of the Board of Immigration Appeals decision, concluding that Villavicencio was not removable for a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i) because the statutes under which he was convicted of conspiracy to possess drugs, Nevada Revised Statutes §§ 199.480 and 454.351, are overbroad and indivisible. The panel held that the Nevada conspiracy statute, NRS § 199.480, is overbroad when compared to the generic definition of conspiracy because the Nevada statute lacks the requisite “overt act” element. Therefore, the panel concluded that the categorical approach may not be used to determine removability. The panel also concluded that application of the modified categorical approach is foreclosed because this court has already determined that NRS § 199.480 is indivisible. The panel further held that NRS § 454.351, which covers any drug which may not be lawfully introduced into interstate commerce under the Federal Food, Drug and Cosmetic Act, is categorically overbroad relative to the substances controlled under 21 U.S.C. § 802. The panel also concluded that, although the Nevada statute lists multiple means of violation, i.e., possessing, procuring, or manufacturing, ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. VILLAVICENCIO V. SESSIONS 3 because jurors need not agree on the means of the violation, the statute must still be regarded as indivisible. Accordingly, the panel held that the statute cannot be used as a predicate offense to support removal. COUNSEL Kari E. Hong (argued), Supervising Attorney; Katherine Horigan (argued) and Yara Kass-Gergi (argued), Certified Law Students; Ninth Circuit Appellate Project, Boston College Law School, Newton, Massachusetts; for Petitioner. Dawn S. Conrad (argued) and Edward E. Wiggers, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent. Robert M. Loeb and Thomas M. Bondy, Orrick Herrington & Sutcliffe LLP, Washington, D.C.; Aaron W. Scherzer, Orrick Herrington & Sutcliffe LLP, New York, New York; Brian P. Goldman, Orrick Herrington & Sutcliffe LLP, San Francisco, California; Jayashri Srikantiah and Lisa Weissman-Ward, Immigrants’ Rights Clinic, Mills Legal Clinic, Stanford, California; Manuel Vargas and Andrew Wachtenheim, Immigrant Defense Project, New York, New York; for Amici Curiae Immigrant Defense Project, American Immigration Lawyers Association, Asian Americans Advancing Justice–Asian Law Caucus, Community Legal Services in East Palo Alto, Detention Watch Network, Florence Immigrant ...

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