FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ZALDY ARQUITOLA MYERS, No. 17-71416 Petitioner, Agency No. v. A058-396-838 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 10, 2018 San Francisco, California Filed September 25, 2018 Before: Kim McLane Wardlaw and Richard R. Clifton, Circuit Judges, and Gary S. Katzmann,* Judge. Opinion by Judge Clifton * The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. 2 MYERS V. SESSIONS SUMMARY** Immigration The panel denied in part and granted in part Zaldy Arquitola Myers’s petition for review of a decision of the Board of Immigration Appeals that found him removable for a controlled substance offense and ineligible for cancellation of removal, holding that: 1) the Travel Act, 18 U.S.C. § 1952(a)(3), is divisible; 2) Myers’s conviction under the Travel Act qualifies as a controlled substance offense; and 3) substantial evidence did not support the agency’s denial of cancellation of removal, and remanded. BIA concluded that Myers was removable for having been convicted of a controlled substance offense based on his conviction under the Travel Act, which makes it a crime to travel in interstate or foreign commerce with intent, among other things, to “promote, manage, establish, carry on, or facilitate . . . unlawful activity.” 18 U.S.C. § 1952(a)(3). The unlawful activity facilitated by Myers was identified as possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). To determine whether Myers’s conviction was a controlled substance offense under the Immigration & Nationality Act, the panel employed the three-step process articulated by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), and Descamps v. United States, 570 U.S. 254 (2013). First, the panel noted that in this case it was ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MYERS V. SESSIONS 3 agreed that the Travel Act is not a categorical match for a federal controlled substance offense. Second, the panel considered whether the Travel Act is divisible with respect to the “unlawful activity” with which a defendant is charged. The panel observed that the question was whether the “unlawful activity” is an element of the offense, meaning: whether it is necessary to identify a specific unlawful act to obtain a conviction under the Travel Act, or whether it would be sufficient to conclude that the defendant committed one or more of the crimes listed in the statute without specifying or reaching agreement on which crime. Looking to the law of the Fifth Circuit (in which Myers was convicted), the panel concluded that it appears from the Fifth Circuit cases that the specification of the “unlawful activity” is treated as an element for a Travel Act conviction and that, therefore, the statute is divisible. Third, applying the modified categorical approach, the ...
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