NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LUIS YEPEZ-VARGAS, AKA Luis Yepez No. 17-72070 Vargas, AKA Luis Vargas Yepez, AKA Luis Yepis-Vargas, Agency No. A039-317-280 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 17, 2019 San Francisco, California Before: FERNANDEZ, BEA, and N.R. SMITH, Circuit Judges. Luis Yepez-Vargas (“Yepez”) petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) removal order. Pursuant to 8 U.S.C. § 1252, we have jurisdiction; we grant in part and deny in part Yepez’s petition for review and remand to the BIA for further proceedings. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. The BIA erred in holding that Yepez’s narcotic drug conviction under Arizona Revised Statute § 13-3408(A)(7) was an aggravated felony, which rendered him ineligible for cancellation of removal. The parties agree that § 13- 3408(A)(7) is overbroad when compared to the generic aggravated felony, because the term “narcotic drug” as defined by Arizona Revised Statute § 13-3401(20) criminalizes more drugs (benzylfentanyl and thenylfentanyl) than its federal counterpart, 21 U.S.C. §§ 802(6), 812. See Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014) (noting that a statute of conviction that criminalizes benzylfentanyl and thenylfentanyl is not categorically a removable offense under the federal Controlled Substances Act). Because § 13-3408(A)(7) is overbroad, we must next determine whether the statute is divisible, meaning it “sets out one or more elements of the offense in the alternative.” Descamps v. United States, 570 U.S. 254, 257 (2013). If we determine that the statute of conviction is indivisible, our inquiry ends, because “a conviction under an indivisible, overbroad statute can never serve as a predicate offense.” Almanza-Arenas v. Lynch, 815 F.3d 469, 475 (9th Cir. 2016) (en banc). Section 13-3408(A)(7) is also “indivisible,” because the statute lists alternative means of committing the same offense. See State v. Salinas, 887 P.2d 985, 987 (Ariz. 1994) (setting forth “[t]he elements of possession of a narcotic for sale are: 1) exercise of dominion and control over the substance; 2) knowledge that the 2 substance is present; 3) knowledge that the substance is a narcotic; and 4) possession of the substance for the purpose of sale”); State v. Castorina, No. 1 CA- CR 08-0816, 2010 WL 2450117, at *4 (Ariz. Ct. App. June 17, 2010) (relying on Salinas, the court noted that “neither our statutes nor case law require the state to prove that defendant knew which particular drug defined under our laws as a ‘dangerous’ drug or ‘narcotic’ drug he knew he possessed” (emphasis in original)); see also Mathis v. United States, 136 S. Ct. 2243, 2256 (2016) (“[A] state court decision definitively answers the [divisibility] question . . . .”). 2. Yepez ...
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