Matter of GONZALEZ LEMUS 27 I&N Dec. 612 (BIA 2019)
(1) Because the identity of the drug involved is an element of the crime of possession of a controlled substance under section 124.401(5) of the Iowa Code, the statute is divisible (in the case of marijuana, methamphetamine, or amphetamine) as to the specific drug involved, and the record of conviction can be examined under the modified categorical approach to determine whether that drug is a controlled substance under Federal law.
(2) The respondent’s conviction for possession of methamphetamine in violation of section 124.401(5) of the Iowa Code is a violation of a law relating to a controlled substance under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012).
Matter of GONZALEZ LEMUS 27 I&N Dec. 612 (BIA 2019) Full case here and below
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Matter of Jorge GONZALEZ LEMUS, Respondent
Decided September 25, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Because the identity of the drug involved is an element of the crime of possession of a
controlled substance under section 124.401(5) of the Iowa Code, the statute is divisible
(in the case of marijuana, methamphetamine, or amphetamine) as to the specific drug
involved, and the record of conviction can be examined under the modified categorical
approach to determine whether that drug is a controlled substance under Federal law.
(2) The respondent’s conviction for possession of methamphetamine in violation of
section 124.401(5) of the Iowa Code is a violation of a law relating to a controlled
substance under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(B)(i) (2012).
FOR RESPONDENT: Gail E. Bolivar, Esquire, Marshalltown, Iowa
FOR THE DEPARTMENT OF HOMELAND SECURITY: Heather E. Caylor, Assistant
Chief Counsel
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK,
Board Members.
GRANT, Board Member:
In a decision dated December 3, 2018, an Immigration Judge found the
respondent removable under section 237(a)(2)(B)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), as an alien convicted of
a controlled substance violation.1 The respondent has appealed from that
decision. The appeal will be dismissed.
The respondent is a native and citizen of Mexico whose status was
adjusted to that of a lawful permanent resident on April 29, 2009. The charge
of removability is based on two convictions for possession of a controlled
substance in violation of section 124.401(5) of the Iowa Code. He was
convicted on May 16, 2016, of possession of methamphetamine and on June
24, 2016, of possession of marijuana.
1 The record reflects that the respondent was also charged with removability under section
237(a)(2)(B)(ii) of the Act, as “an alien who is, or at any time after admission has been, a
drug abuser or addict.” The Immigration Judge made no finding in regard to that charge.
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The only issue on appeal is whether a conviction under section
124.401(5) of the Iowa Code is a “violation of . . . any law or regulation of a
State . . . relating to a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802))” within the meaning of section
237(a)(2)(B)(i) of the Act.2 Since the respondent made no application for
relief from removal, the question relates only to whether he is removable.
To determine whether the respondent’s conviction renders him
removable under section 237(a)(2)(B)(i), we apply the categorical approach.
See Mellouli v. Lynch, 135 S. Ct. 1980, 1986–88 (2015). Under this
approach, “the Government must connect an element of the alien’s
conviction to a drug ‘defined in [§ 802].’” Id. at 1991 (alteration in original)
(citation omitted). If the State crime is not a categorical match but the statute
is divisible—that is, comprised of “multiple alternative elements”—we may
look to the relevant conviction records under a “modified categorical
approach” to determine “what crime, with what elements, [the respondent]
was convicted of.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)
(citation omitted).
The Iowa controlled substance statute includes at least one substance that
is not on the Federal schedules of controlled substances. The respondent’s
removability therefore depends on whether the identity of the controlled
substance is an “element” of section 124.401(5) of the Iowa Code. If it is,
the State statute is divisible. If, instead, the identity of the controlled
substance is a “brute fact” or a means by which a crime may be committed,
then the statute is not divisible and is overbroad. Matter of Chairez, 26 I&N
Dec. 819, 822 (BIA 2016) (clarifying that a statute is not “divisible unless
each statutory alternative defines an independent ‘element’ of the offense, as
opposed to a mere ‘brute fact’ describing various means” of violating the
statute (quoting Mathis, 136 S. Ct. at 2248)).
The Immigration Judge found that the identity of the controlled substance
is an element of section 124.401(5) and, therefore, that the statute is divisible
and the modified categorical approach could be applied. The respondent
challenges this determination on appeal. Upon de novo review of this legal
question, we agree with the Immigration Judge that the identity of the
controlled substance is an element of the crime under section 124.401(5).
At the time of the respondent’s conviction, section 124.401(5) of the Iowa
Code provided, in relevant part:
It is unlawful for any person knowingly or intentionally to possess a controlled
substance unless such substance was obtained directly from, or pursuant to, a valid
2 A “controlled substance” is defined in 21 U.S.C. § 802(6) (2012) as “a drug or other
substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this
subchapter.” The schedules of controlled substances are at 21 U.S.C. § 812 (2012).
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prescription or order of a practitioner while acting in the course of the practitioner’s
professional practice, or except as otherwise authorized by this chapter. Any person
who violates this subsection is guilty of a serious misdemeanor for a first offense. . . .
If the controlled substance is marijuana, the punishment shall be by imprisonment
in the county jail for not more than six months or by a fine of not more than one
thousand dollars, or by both such fine and imprisonment for a first offense. . . .
. . . .
If the controlled substance is amphetamine, its salts, isomers, or salts of its
isomers, or methamphetamine, its salts, isomers, or salts of its isomers, the court
shall order the person to serve a term of imprisonment of not less than forty-eight
hours.3
(Emphases added.) Thus, the statute prescribes distinct punishments for drug
possession offenses, depending on the identity of the specific controlled
substance involved, that is, whether it is marijuana, methamphetamine,
amphetamine, or some other controlled substance. See State v. Brisco, 816
N.W.2d 415, 419 (Iowa Ct. App. 2012) (acknowledging that different
penalties are associated with delivery offenses involving marijuana and
cocaine).
The United States Court of Appeals for the Eighth Circuit, in whose
jurisdiction this case arises, has stated that “different penalties for different
statutory alternatives are an indication that the alternatives are elements.”
Martinez v. Sessions, 893 F.3d 1067, 1071 (8th Cir. 2018); see also Mathis,
136 S. Ct. at 2256 (“If statutory alternatives carry different punishments,
then . . . they must be elements.”). In Martinez, as here, the State controlled
substance statute at issue encompassed drugs that are not listed in the Federal
schedules. To resolve the “dispute over means versus elements,” the court
examined the statutory text, the relevant jury instructions, and State court
decisions. Id. After reviewing relevant State court decisions and finding that
they “provide the best answer,” the court held that “the identity of a
controlled substance [was] an element of the offense.” Id. It therefore found
the statute to be “divisible based on the drug involved” and upheld our
determination under the modified categorical approach that the underlying
substance was listed in the Federal drug schedules. Id. at 1073.
The respondent argues that if the specific reference to marijuana renders
the statute divisible, then the statute is divisible only to the binary question
whether the controlled substance was marijuana or not. However, as noted
above, the statute also includes specific references to methamphetamine and
amphetamine.
Furthermore, Iowa has prosecuted as separate offenses a single act
involving the distribution and/or delivery of multiple controlled substances.
3 Section 124.401 of the Iowa Code has since been revised, but the relevant portions of
the statute remain the same.
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In State v. Birkestrand, 239 N.W.2d 353, 364 (Iowa 1976), the Supreme
Court of Iowa rejected the defendant’s claim that he was subjected to double
punishment because the charges against him—possession of marijuana with
intent to deliver and possession of LSD with intent to deliver (which was
reduced to simple possession)—both arose out of same factual situation. The
court noted that “when a requisite element of one offense is not necessarily
essential to a conviction for another, no double punishment attends judgment
on both unless one is an included offense in the other.” Id. (emphasis added).
Finding that LSD possession was not included in the marijuana offense
because “two different controlled substances [were] involved,” the court
concluded that “[i]t is . . . self-evident the elements of proof required as to”
LSD possession “are not the same as those essential to a conviction” for
possession with intent to deliver marijuana. Id. (emphasis added); see also
State v. McManus, 871 N.W.2d 522 (Iowa Ct. App. 2015) (table) (stating that
the defendant was charged with two offenses of possession of a controlled
substance for marijuana and methamphetamine); State v. Eubanks, 851
N.W.2d 854 (Iowa Ct. App. 2014) (table) (affirming the defendant’s
convictions for two counts of possession of a controlled substance—crack
cocaine and marijuana). State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981),
on which the respondent relies, is not persuasive because it involved the
burglary of a boat and a marina and therefore has limited application to his
criminal case.
The respondent also asserts that the Iowa Model Criminal Jury Instruction
shows that the State is not required to prove the identity of a controlled
substance. Nevertheless, as discussed above, the Iowa courts have
considered the identity of the controlled substance to be a required element
of the offense and have treated possession of different types of controlled
substances as separate offenses. Furthermore, Iowa case law establishes that
juries have been instructed that the State is required to prove the identity of
a controlled substance during the course of criminal proceedings. See, e.g.,
State v. West, 924 N.W.2d 873 (Iowa Ct. App. 2018) (table) (stating that the
jury was instructed that “the State would have to prove the following
elements of delivery of a controlled substance: . . . The defendant knew that
the substance delivered was heroin”), aff’d, 924 N.W.2d 502 (Iowa 2019);
State v. Milder, 868 N.W.2d 201 (Iowa Ct. App. 2015) (table) (same, with
regard to possession of methamphetamine). Consequently, in accord with
the Iowa court decisions, we conclude that the identity of the controlled
substance is an element of the crime under section 124.401(5). See Martinez,
893 F.3d at 1073 (finding that the State court decisions showed that the
identity of the drug was an element of the offense).
We are also unpersuaded by the respondent’s reasoning that the identity
of the controlled substance is not an element of the Iowa statute because the
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