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The Board of Immigration Appeals distinguished and seemingly overturned the Supreme Court’s decision in Pereira v. Sessions and methamphetamine convictions in California are no longer federal controlled substance offenses! We have been on the best roller coaster EVER this week! It’s the equivalent of the X2 roller coaster at Six Flags Magic Mountain in Valencia, California! (Here’s the rollercoaster link, https://www.sixflags.com/magicmountain/attractions/x2-coaster). I’m going to divide this week’s blog into two parts, because these two cases have so much going on that they deserve their own blog. I have to say; this blog might be my favorite one of the year so far. A lot of other important things also happened this week, but nothing quite as exciting as the BIA deciding to overrule the Supreme Court; or the fact that a conviction for methamphetamine is California is not a federal controlled substance offense (it’s all about the isomers). Let’s start with the Board of Immigration Appeals.
Board of Immigration Appeals
A Notice to Appear that Does Not Specify the Time and Place of a Noncitizen’s Initial Removal Hearing Meets the Requirements of a Notice to Appear Under INA § 239(a) as Long as a Notice of Hearing Specifying this Information is Later Sent to the Noncitizen
The Board of Immigration Appeals (BIA) held that a Notice to Appear that does not specify the time and place of the initial removal hearing vests an Immigration Judge with jurisdiction over the proceedings and meets the requirements of a Notice to Appear as specified in INA § 239(a) as long as the notice of hearing specifying the time and place of the hearing is later sent to the noncitizen. However, the decision does not analyze the statute itself and ignores the Supreme Court’s decision in Pereira. The BIA held that a two-step notice process is sufficient to meet the statutory requirements of INA § 239(a). The BIA noted that Pereira only addresses the stop time rule for cancellation of removal for non-lawful permanent residents and does not address any jurisdictional issues. What is very interesting is that the BIA chose to use a case out of the Ninth Circuit to issue its published decision. (The Ninth Circuit is the most notoriously liberal circuit in the country, and, at least in California, we all ride unicorns to work; and our offices all have slides, ping-pong tables. Well, that last part is true in the tech sector). It’s going to be very interesting to see what the Ninth Circuit does. I anticipate that there will be a split in the circuits and this issue will return to the Supreme Court in the next year or two. Regardless of this decision, I think it very important that in all our cases we preserve the issue and argue that the immigration courts do not have jurisdiction over these cases because a putative Notice to Appear does not convey jurisdiction on the immigration courts.
Back to the decision. German Bermudez-Cota is a native and citizen of Mexico. In 1991, he entered the United States without inspection. On August 28, 2013, DHS personally served him with a notice to appear that ordered him to appear before an immigration judge at a date and time to be set. On September 9, 2013, the Immigration Court mailed a notice of hearing to the address that Mr. Bermudez-Cota provided with the time and date of the hearing. Mr. Bermudez-Cota conceded in written pleadings that he received proper service of the notice to appear and the appeared at all of the subsequent hearings. On October 3, 2017, at his last hearing, Mr. Bermudez-Cota filed for a continuance or administrative closure based on his eligibility to adjust status. The IJ denied his requests but granted him voluntary departure. While his appeal was pending before the BIA, the Supreme Court issued its decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018) and Mr. Bermudez-Cota filed a motion to terminate with the BIA.
In Pereira the Supreme Court held as follows (I just love this language, so I have to quote it): “If the Government serves a noncitizen with a document that is labeled “notice to appear,” but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No.” Pereira, 138 S.Ct. at 2110. The BIA (in much less elegant and amusing language) held that Pereira is limited to the stop-time rule. The BIA noted that Mr. Bermudez-Cota unlike Mr. Pereira was properly served with both a notice to appear and a subsequent notice of hearing. “Although the Court stated that a notice to appear that does not inform an alien when and where to appear for removal proceedings is not a “notice to appear” under section 239(a), it explained that this was so because “[c]onveying such time-and-place information to a noncitizen is an essential function of a notice to appear, for without it, the Government cannot reasonably expect the noncitizen to appear for his removal proceedings.” Pereira, 138 S. Ct. at 2115. The respondent in this case clearly was sufficiently informed to attend his hearing.” Matter of Bermudez-Cota, 27 I.&N. Dec. 441, 443 (BIA 2018).
The BIA then does something very interesting, rather than looking at the statute it is interpreting, it looks at the regulations. It ignores the statute completely. So, let’s start with the statute. INA § 239(a) states in its entirety:
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Notice to appear
(1) In general
In removal proceedings under section 1229a of this title, written notice (in this section referred to as a “notice to appear”) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying the following:
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are conducted.
(C) The acts or conduct alleged to be in violation of law.
(D) The charges against the alien and the statutory provisions alleged to have been violated.
(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) and (ii) a current list of counsel prepared under subsection (b)(2).
(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 1229a of this title.(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number.(iii) The consequences under section 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph.
(G)(i)The time and place at which the proceedings will be held.
(ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings.
The statute clearly requires that the Notice to Appear lists time and place at which the proceedings will be held. It really can’t be any clearer. There it is, INA § 239(a)(1)(G). After Congress enacted this statute, the Executive Branch promulgated regulations listing the information that must be contained in a notice to appear. That list does not mandate the time and date of the initial hearing. When I first read this regulation, I thought I was hallucinating or over-tired because I could not find where it stated that the Notice to Appear must list the time and date of the hearing. But, it doesn’t. Here is the relevant part of the regulation:
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The Order to Show Cause and Notice to Appear must also include the following information:
(1) The nature of the proceedings against the alien;
(2) The legal authority under which the proceedings are conducted;
(3) The acts or conduct alleged to be in violation of law;
(4) The charges against the alien and the statutory provisions alleged to have been violated;
(5) Notice that the alien may be represented, at no cost to the government, by counsel or other representative authorized to appear pursuant to 8 CFR 1292.1;
(6) The address of the Immigration Court where the Service will file the Order to Show Cause and Notice to Appear; and
(7) A statement that the alien must advise the Immigration Court having administrative control over the Record of Proceeding of his or her current address and telephone number and a statement that failure to provide such information may result in an in absentia hearing in accordance with § 1003.26.
8 C.F.R. § 1003.15(b).
The BIA noted that it is required to follow the regulations citing Matter of L-M-P-, 27 I.&N. Dec. 236 (BIA 2018). Bermudez-Cota, 27 I.&N. Dec. at 444. The BIA held, (and this is priceless):
The regulation does not specify what information must be contained in a “charging document” at the time it is filed with an Immigration Court, nor does it mandate that the document specify that time and date of the initial hearing before jurisdiction will vest.
Bermudez-Cota, 27 I.&N. Dec. at 445.
Now, I don’t know where these people went to law school, but at the law school that I went to we learned that regulations interpret the statute and that if there is a difference between the regulation and the statute, the statute is the controlling source of law. I learned (in elementary school) that Congress writes the laws and the Executive Branch enforces the laws. The Executive Branch promulgates the regulations to enforce the law. It’s Fifth Grade Civics – not even Eight Grade Civics! (Though the part about the Executive Branch promulgating regulations to enforce the laws is, in fact, from law school). Didn’t these people ever watch School House Rocks!? The BIA cannot look only at the regulations that omit the part of the statute that the Executive branch does not like and have that regulation be the controlling law. Imagine if 8 CFR § 1227 (classes of deportable aliens) omitted noncitizens convicted of aggravated felonies from its list of removable noncitizens; would a noncitizen who had been convicted of an aggravated felony suddenly not be removable because that ground was not listed in the promulgating regulation? As Jeffrey Chase said in his blog on this decision, the BIA is much more fearful of Jeff Sessions and of losing their jobs than they are of the Supreme Court. It’s the only explanation for this decision.
The BIA then cites to the controlling Ninth Circuit case (decided pre-Pereira) holding that “[a]lthough [section 239](a)(1)(G)(i) requires a notice to appear to ‘specify[]’ the time and place at which the proceedings will be held, this court has never held that the ‘notice to appear’ cannot state that the time and place of the proceedings will be set at a future time by the Immigration Court.” Popa v. Holder, 571 F.3d 890, 895 (9th Cir. 2009). Bermudez-Cota, 27 I.&N. Dec. at 445. So, really, the question is, can a notice of hearing cure a putative notice to appear? Until Pereira, four circuits seemed to think that a defective Notice to Appear could be cured with the Notice of Hearing. Bermudez-Cota, 27 I.&N. Dec. at 447. However, the Supreme Court was very clear that a Notice to Appear without the time and place of removal proceedings not a Notice to Appear. It was a piece of paper. “Moreover, the omission of time-and-place information is not, as the dissent asserts some trivial, ministerial defect, akin to an unsigned notice of appeal. *.*.* Failing to specify integral information like the time and place of removal proceedings unquestionably would “deprive [the notice to appear] of its essential character.” Pereira, 138 S.Ct. at 2116-2117. We should all keep arguing that these notices to appear are putative and that the immigration courts and the BIA do not have jurisdiction over these cases. We are going to lose before the Immigration Courts, the BIA, and maybe in many of the circuits, but this issue is going back to the Supreme Court.
Matter of Bermudez-Cota, 27 I.&N. Dec. 441 (BIA 2018).
Ninth Circuit
The California Definition of Methamphetamine is Broader than the Federal Definition and, the California Definition of Methamphetamine is Not Divisible – In Other Words, Any California Conviction for a Controlled Substance Offense Where that Underlying Substance is Methamphetamine is Not a Federal Controlled Substance Offense and Does Not Render the Noncitizen Inadmissible or Deportable
In a case that I find the most mind-blowing of the year (and that is saying a lot) the Ninth Circuit ruled that California’s definition of methamphetamine is broader than the federal definition of methamphetamine and that the California definition of methamphetamine is not divisible. Which means that a controlled substance conviction for methamphetamine in California is not a federal controlled substance offense! Is your mind blown?
The Ninth Circuit held that a conviction for methamphetamine under Cal. Health & Safety Code § 11378 (possession for sale) and Cal. Health & Safety Code § 11379 (transportation or sale) is broader than the definition of a conviction for methamphetamine under the federal Controlled Substances Act 21 U.S.C. § 812. The statute is not divisible because the different varieties of methamphetamine covered by California law are alternative means of committing a single crime rather than alternative elements of separate crimes. I suspect that this reasoning can be expanded to include other substances and other sections of the California Health & Safety Code, as well as to controlled substance statutes from other states, but, I have not done the research. So, let’s stop and take a moment to thank the brilliant attorneys who came up with this argument. [It was pro bono attorneys from Orrick, Herrington & Sutcliffe – thank you, thank you, thank you!]
Elisio Atenia Lorenzo is a native and citizen of the Philippines who entered the United States as a lawful permanent resident in 1983 and has lived in the United States for the past thirty-five years. In 2013, he pleaded nolo contendere to possession for sale of methamphetamine in violation of Cal. Health & Safety Code § 11378 and transportation of methamphetamine in violation of section 11379. The record of conviction does not identify the type of methamphetamine involved. The State of California sentenced Mr. Atenia Lorenzo to one year in jail and probation. ICE placed Mr. Atenia Lorenzo in proceedings and charged with him with having been convicted of an aggravated felony under INA § 237(a)(2)(A)(iii) for drug trafficking and with being removable under INA § 237(a)(2)(B)(i) for having been convicted of a controlled substance offense. Mr. Atenia Lorenzo filed a motion to terminate proceedings arguing that his methamphetamine convictions did not necessarily involve a controlled substance as defined by federal law. He argued that California law is broader than the definition of methamphetamine under the federal Controlled Substances Act. “Specifically, he argued the definition of methamphetamine under California law is broader than the definition of methamphetamine under the federal Controlled Substances Act (CSA), because the CSA’s definition includes only optical isomers of methamphetamine, whereas the California law includes both optical and geometric isomers of methamphetamine.” Atenia Lorenzo v. Sessions, No. 15-70814, slip op. at *6 (9th Cir. August 29, 2018) (emphasis added). The Immigration Judge denied Mr. Atenia Lorenzo’s motion to terminate and ordered him removed and the BIA affirmed the IJ’s decision.
The Ninth Circuit carefully analyzed the laws involved. First, they looked at Cal. Health & Safety Code § 11378 which makes it a crime to possess for sale a controlled substance as defined in Cal. Health & Safety Code § 11055. Then they looked at Cal. Health & Safety Code § 11379 which makes it unlawful to transport, sell, give away, etc. any controlled substance defined in Cal. Health & Safety Code § 11055. So, under California law, methamphetamine includes “[m]ethamphetamine, its salts, isomers, and salts of its isomers.” Cal. Health & Safety Code § 11055(d)(2). Then, Cal. Health & Safety Code § 11033 further provides that “the term “isomer,” unless otherwise defined, “includes optical and geometrical (diastereomeric) isomers.” Thus, under California law a methamphetamine conviction under §§ 11378 or 11379(a) may involve methamphetamine or it may involve methamphetamine’s “salts, isomers, [or] salts of its isomers,” including both “optical and geometrical…isomers.” Atenia Lorenzo, slip op. at *8. The Ninth Circuit then notes, “The CSA likewise applies to “[a]ny substance” that “contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers.” 21 U.S.C. § 812 Schedule II(c), Schedule III(a)(2). With respect to methamphetamine, however, the CSA applies only to optical isomers, not geometric isomers. Atenia Lorenzo, slip op. at *9. The Ninth then cites to 21 U.S.C. § 802(14):
The term “isomer” means the optical isomer, except as used in section I(c) and schedule II(a)(4). As used in schedule I(c), the term “isomer” means any optical, positional or geometric isomer. As used in schedule II(a)(4), the term “isomer” means any optical or geometric isomer.”
Id. Methamphetamine falls under Schedules II(c) and III(a)(3) so for purposes of methamphetamine, the CSA covers only optical isomers. Id. Holy Crap! I would never ever, ever, have caught that. (Then again, the only words I understood in high school chemistry class were “the final is next week” so the difference between optical and geometrical isomers is beyond me.)
The Ninth Circuit notes that they have no reason to believe that the distinctions between California law are immaterial. Both go to great lengths to specify the types of isomers covered for specific controlled substances. The Ninth Circuit notes that the statute is facially overbroad and then goes on to determine whether the several types of methamphetamine (e.g. methamphetamine, its salts, its optical and geometric isomers, and salts of its isomers) are divisible and are subject to the modified categorical approach.
First, the Ninth Circuit looks to “authoritative sources” in state law for a clear answer as to whether geometric and optical isomers of methamphetamine are alternative elements or alternative means for committing the crime. The Ninth noted that the State of California determined that possession of different types of the same drug (such as methamphetamine) constitutes a single offense under California law because the drugs fell within the same classification in the drug schedule. People v. Schroeder, 70 Cal. Rptr. 491, 499 (Ct. App. 1968). The Ninth noted that the California Supreme Court cited Schroeder with approval in In re Adams, 536 P.2d 473, 477 (Cal. 1975). Accordingly, the type of methamphetamine is not a divisible offense and is not subject to the modified categorical approach. So, while, the actual controlled substance is divisible, (e.g. is it methamphetamine, heroin, cocaine) the identity of the type of methamphetamine is not divisible and is overbroad.
Now for some reason, the IJ and the BIA never determined whether Mr. Atenia Lorenzo had been convicted of an aggravated felony. They just found that he was deportable for having been convicted of a controlled substance offense. The Ninth Circuit remanded this case to the BIA to determine whether he had been convicted of an aggravated felony drug trafficking offense, but they added these words of caution: “If the BIA address the government’s aggravated felony theory on remand, it should consider whether than theory suffers from the same flaw as the government’s theory of removability under 8 U.S.C. § 1227(a)(2)(B)(i) [INA § 237(a)(2)(B)(i)]. Atenia Lorenzo slip op. at *20. I think that anyone with a controlled substance case in the Ninth Circuit needs to read this case very carefully and see if it applies. What fantastic advocacy!!!!!!
Atenia Lorenzo v. Sessions, No. 15-70814 (9th Cir. August 29, 2018).