NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 17-2571 _______________ MIGUEL GONZALEZ ESPINOZA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _______________ On Petition for Review of an Order of the Board of Immigration Appeals (BIA No. A099-939-312) _______________ Submitted Under Third Circuit L.A.R. 34.1(a) April 19, 2018 Before: GREENAWAY, JR., RENDELL, and FUENTES, Circuit Judges (Opinion Filed: July 26, 2018) _______________ OPINION _______________ *This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FUENTES, Circuit Judge. Miguel Gonzalez Espinoza petitions for review of his final order of removal for a controlled substance violation issued by the Board of Immigration Appeals (the “Board”). For the reasons explained below, we will deny the petition. I. Gonzalez Espinoza, a citizen of Mexico, has lived in the United States as a lawful permanent resident since 2011. In 2013, Gonzalez Espinoza was charged with knowingly or intentionally possessing a Schedule I controlled substance, XLR-11, under section 780-113(a)(16) of the Pennsylvania Controlled Substances Act (the “Act”). In 2016, Gonzalez Espinoza was charged again under the same statute for knowingly or intentionally possessing synthetic marijuana. In March 2016, Gonzalez Espinoza pled guilty to each controlled substance charge. In October 2016, the Department of Homeland Security began removal proceedings against Gonzalez Espinoza on the grounds that he was an alien, lawfully admitted into the United States, convicted of a controlled substance violation under 8 U.S.C. section 1227 (a)(2)(B)(i). In a motion to terminate removal proceedings before the Immigration Judge, Gonzalez Espinoza argued section 780-113(a)(16) of the Act was not categorically a controlled substance violation under 8 U.S.C. section 1227(a)(2)(B)(i) . Further, Gonzalez Espinoza argued section 780-113(a)(16) was indivisible, asserting the specific substances involved in the statute were means, and not elements, of the offense, and therefore, a judge could not appropriately apply the modified categorical approach. 2 The Immigration Judge rejected Gonzalez Espinoza’s arguments, finding section 780-113(a)(16) of the Act divisible. Consequently, the Immigration Judge applied the modified categorical approach and found that Gonzalez Espinoza’s 2013 conviction was for possessing XLR-11, a drug published in the Federal Schedule at 21 C.F.R section 1308(d)(49). As such, the Immigration Judge concluded that the statute of conviction in Gonzalez Espinoza’s conviction was categorically a controlled substance offense under section 1227 (a)(2)(B)(i), and thus, he was removable. On appeal to the Board, Gonzalez Espinoza argued that section 780-113(a)(16) is indivisible. The Board rejected Gonzalez Espinoza’s argument and upheld the Immigration Judge’s conclusion, stating that the relevant Pennsylvania statute is divisible. The Board, like the Immigration Judge, did not consider Gonzalez Espinoza’s 2016 offense in its determination of removability. Gonzalez Espinoza timely filed a petition for review.1 II. The question before this Court is whether the Board erred in applying the modified categorical approach and finding that Gonzalez Espinoza was convicted of a 1 The Board exercised jurisdiction to review the Immigration Judge’s order of voluntary departure under 8 C.F.R. sections 1003.1(b)(3); and 1240.15. We generally ...
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