Zaldy Myers v. Jefferson Sessions, III , 904 F.3d 1101 ( 2018 )

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
panel concluded that Myers’s conviction was for a controlled
substance offense that made him removable, explaining that
the superseding information and plea agreement show that
Myers pleaded guilty to 18 U.S.C. § 1952(a)(3), that the
“unlawful activity” was possession with intent to distribute
methamphetamine, and that methamphetamine is a federally
controlled substance.
With respect to cancellation of removal, the panel
concluded that substantial evidence did not support the BIA’s
conclusion that Myers lacked the required seven years of
presence. A person seeking cancellation of removal must
have resided in the United States continuously for seven years
after having been admitted in any status, but the period is
4 MYERS V. SESSIONS
deemed to end, among other times, when the alien is served
a notice to appear.
The BIA concluded that Myers was ineligible for
cancellation of removal “because the notice to appear was
served upon him in January 2013,” which is less than seven
years after he was admitted to the United States in September
2006. However, the panel noted that the immigration judge
did not make any finding regarding when the notice was
served on Myers, but simply stated that Myers was “placed
into proceedings on January 3, 2013.”
Myers contended that he was not served with the notice
until October 30, 2015, a date more than seven years after his
admission. The Government acknowledged that the notice to
appear was unclear, but contended that the dates were
irrelevant because Myers’s continuous presence ended when
he violated the Travel Act in 2011 and, as a result, any error
was harmless. The panel rejected Government’s argument
because the BIA did not make any such determination,
concluding that the case must therefore be remanded to
determine whether Myers is eligible for cancellation of
removal.
MYERS V. SESSIONS 5
COUNSEL
Kelsey Gasseling (argued) and Andrew Snow (argued),
Certified Law Students; Kari Hong (argued), Supervising
Attorney; Ninth Circuit Appellate Project, Boston College
Law School, Newton, Massachusetts; for Petitioner.
Sarah A. Byrd (argued) and Karen L. Melnik, Trial
Attorneys, Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C., for
Respondent.
OPINION
CLIFTON, Circuit Judge:
Zaldy Arquitola Myers petitions for review of an order of
removal. The Board of Immigration Appeals (“BIA”)
concluded that Myers is removable based on his felony
conviction under the Travel Act, 18 U.S.C. § 1952(a)(3), for
traveling in interstate commerce to facilitate an unlawful
activity. 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).”
The BIA held that Myers is removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) because he had been convicted of a
controlled substance offense. Myers challenges that
conclusion. Although not all convictions under the Travel
Act represent violations related to controlled substances,
meaning that the statute is not a categorical match to the
removal statute, we conclude that the Travel Act is divisible
in that respect. We further conclude that Myers’s conviction
qualifies as a controlled substance offense under the modified
6 MYERS V. SESSIONS
categorical approach. As to that issue, we deny the petition
for review.
Myers also sought relief in the form of cancellation of
removal under 8 U.S.C. § 1229b. The BIA concluded that
Myers is ineligible for that relief because he had not been
present in the United States prior to the initiation of the
removal proceedings against him for the number of years
required under the statute. That conclusion was not supported
by substantial evidence. The statute states that the relevant
time period ends “when the alien is served a notice to
appear.” 8 U.S.C. § 1229b(d)(1). The BIA used the date on
which the notice to appear was issued, not the date when it
was served on Myers. As a result, we grant the petition for
review as to that issue and remand to the agency for
consideration of Myers’s claim for cancellation of removal.
I. Background
Myers is a citizen of the Philippines. He was admitted to
the United States as a lawful permanent resident on
September 20, 2006, when he was nineteen years old. In
2011 Myers was convicted, following his guilty plea, of one
felony count of Interstate Travel in Aid of Racketeering in
violation of 18 U.S.C. § 1952(a)(3). The district court
sentenced him to sixty months of incarceration.
The Government commenced removal proceedings
against Myers, ultimately alleging three alternative grounds
for Myers’s removability. The only ground relevant to our
decision is the contention that Myers had been convicted of
a controlled substance offense. Specifically, the Government
alleged that Myers was removable based on his 2011 Travel
Act conviction. The relevant subsection of the immigration
MYERS V. SESSIONS 7
statute provides for the removal of “[a]ny alien who at any
time after admission has been convicted of a violation of (or
a conspiracy or attempt to violate) any law or regulation of a
State, the United States, or a foreign country relating to a
controlled substance (as defined in section 802 of Title 21),
other than a single offense involving possession for one’s
own use of 30 grams or less of marijuana.” 8 U.S.C.
§ 1227(a)(2)(B)(i).
The Immigration Judge (“IJ”) sustained that charge. In a
written order filed on February 2, 2016, the IJ noted that
Myers did not dispute his criminal conviction for violation of
the Travel Act. The IJ held that his conviction was based on
a “conspiracy to possess with intent to distribute
methamphetamine” and concluded that his conviction was
related to a controlled substance. The IJ thus decided that
Myers was removable as charged.
Myers also sought relief before the IJ in the form of
cancellation of removal. The IJ concluded that Myers is
ineligible for cancellation of removal, however, as one of the
requirements for relief is that the applicant must have
lawfully resided in the United States for at least seven years
prior to the commencement of the removal proceedings. The
IJ found that Myers was admitted to the United States on
September 20, 2006, but that removal proceedings started on
January 3, 2013, less than seven years later. The IJ therefore
ordered Myers removed to the Philippines.
Myers appealed to the BIA, which affirmed the IJ’s
decision on May 3, 2017. The BIA noted that it used the
categorical approach to determine that Myers’s conviction
rendered him removable “as an alien convicted of violating
any law of the United States relating to a federally controlled
8 MYERS V. SESSIONS
substance.” The BIA concluded that a conviction under the
Travel Act could be analyzed under the modified categorical
approach because the specific act that constituted the
“unlawful activity” was an element of the Travel Act offense
and that a jury was required to agree on a particular “unlawful
activity” in order to find the defendant guilty. The BIA also
stated that its reading of the Travel Act was supported by the
superseding information to which Myers entered his guilty
plea. As described by the BIA, that document specified “that
he traveled in interstate commerce with the intent to promote
one particular unlawful activity to the exclusion of all others,
that is, possession with intent to distribute methamphetamine,
in violation of 21 U.S.C. § 841(a)(1)” (internal quotation
marks omitted).
II. Removability
Myers argues that a conviction under the Travel Act is not
a controlled substance offense for purposes of 8 U.S.C.
§ 1227(a)(2)(B)(i). The Travel Act 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 statute
lists the crimes that may constitute an “unlawful activity”
under the Act. 18 U.S.C. § 1952(b). It includes violations of
controlled substances laws but also includes a number of
crimes other than drug offenses, including gambling,
extortion, and arson.1 Because a conviction under the Travel
1
Specifically, 18 U.S.C. § 1952(b) provides:
As used in this section (i) “unlawful activity” means
(1) any business enterprise involving gambling, liquor
on which the Federal excise tax has not been paid,
MYERS V. SESSIONS 9
Act does not necessarily mean a conviction for activity
relating to controlled substances, Myers contends that his
conviction cannot justify his removal.
To determine whether Myers’s Travel Act conviction is
a controlled substance offense we use the categorical
approach 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). “The Taylor-Descamps
framework lays out a three-step process for determining
whether a specific conviction is a predicate offense
narcotics or controlled substances (as defined in section
102(6) of the Controlled Substances Act), or
prostitution offenses in violation of the laws of the State
in which they are committed or of the United States,
(2) extortion, bribery, or arson in violation of the laws
of the State in which committed or of the United States,
or (3) any act which is indictable under subchapter II of
chapter 53 of title 31, United States Code, or under
section 1956 or 1957 of this title and (ii) the term
“State” includes a State of the United States, the
District of Columbia, and any commonwealth, territory,
or possession of the United States.
Both the Travel Act and the Immigration and Naturalization Act
(“INA”) define “controlled substance” by reference to the federal
Controlled Substances Act (“CSA”). See 18 U.S.C. § 1952(b) (Travel
Act); 8 U.S.C. § 1227(a)(2)(B)(i) (INA). The CSA is codified at
21 U.S.C. § 802, and defines “controlled substance” as “a drug or other
substance, or immediate precursor, included in schedule I, II, III, IV, or V
of part B of this subchapter.” 21 U.S.C. § 802(6). Relevant to the instant
case, 21 U.S.C. § 812 Schedule II(c) and Schedule III(a)(3) concern
methamphetamine.
10 MYERS V. SESSIONS
mandating removal under the INA.”2 Medina-Lara v. Holder,
771 F.3d 1106, 1111–12 (9th Cir. 2014). First, “we ask
whether the statute of conviction is a categorical match to the
generic predicate offense; that is, if the statute of conviction
criminalizes only as much (or less) conduct than the generic
offense.” Id. at 1112. If there is a categorical match, we do
not proceed to the other steps “because the conviction
categorically constitutes a predicate offense.” Id. At step
two, we ask if an overbroad statute is divisible. Id. If it is
indivisible, we are done “because a conviction under an
indivisible, overbroad statute can never serve as a predicate
offense.” Id. (emphasis in original). If the statute is divisible
we move on to step three and apply the modified categorical
approach. Id.
A. Divisibility of the Travel Act
In this case it is agreed that the Travel Act is not a
categorical match as it also covers unlawful activity unrelated
to any controlled substances. The question is whether the
statute is divisible. The BIA concluded that it is. Because
divisibility is a purely legal question, we review the BIA’s
determination de novo. Almanza-Arenas v. Lynch, 815 F.3d
469, 477 (9th Cir. 2016) (en banc).
Divisibility depends on whether a statute’s “listed items
are elements or means.” Mathis v. United States, 136 S. Ct.
2243, 2256 (2016). If they are elements, the statute is
2
Many of the cases explaining and applying the categorical approach
consider the issues of sentencing and immigration. “The Taylor-
Descamps line of cases developing and refining the categorical and
modified categorical approach applies with equal force in both sentencing
and immigration proceedings.” Medina-Lara, 771 F.3d at 1112 n.12.
MYERS V. SESSIONS 11
divisible. If the alternative phrases are means, however, “the
court has no call to decide which of the statutory alternatives
was at issue in the earlier prosecution.” Id.
“To resolve the question of whether statutory alternatives
are either elements or means, a court looks first to the statute
itself and then to the case law interpreting it.” Sandoval v.
Sessions, 866 F.3d 986, 993 (9th Cir. 2017). Statutory
alternatives that carry different punishments are elements.
Mathis, 136 S. Ct. at 2256 (citing Apprendi v. New Jersey,
530 U.S. 466 (2000)). On the other hand, if the statutory list
offers only “illustrative examples, then it includes only a
crime’s means of commission.” Id. (internal quotation marks
omitted).
In some cases, neither the statute nor relevant case law
answers the question, and a court may then look to so-called
Shepard documents to help determine divisibility.3 Sandoval,
866 F.3d at 993; see also Mathis, 136 S. Ct. at 2256 (“And if
state law fails to provide clear answers, federal judges have
another place to look: the record of a prior conviction
itself.”). A court only reviews these documents to “discover
what the prosecutor included as elements of the crime and to
what elements the petitioner pleaded guilty.” Almanza-
Arenas, 815 F.3d at 479.
3
In Shepard v. United States, the Supreme Court held that “enquiry
under the [Armed Career Criminal Act (“ACCA”)] to determine whether
a plea of guilty to burglary defined by a nongeneric statute necessarily
admitted elements of the generic offense is limited to the terms of the
charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this
information.” 544 U.S. 13, 26 (2005).
12 MYERS V. SESSIONS
1. Specifying an“Unlawful Activity”
Myers was convicted of violating 18 U.S.C. § 1952(a)(3)
in the Northern District of Texas on August 14, 2011. Myers
pleaded guilty to the charge stated in the superseding
information:
On or about the 14th day of June, 2011, in the
Amarillo Division of the Northern District of
Texas and elsewhere, the defendant, Zaldy
Arquitola Myers, traveled in interstate
commerce from the State of Arizona to the
State of Texas, with the intent to promote,
manage, establish, carry on and facilitate the
promotion, management, establishment and
carrying on of an unlawful activity, that is,
possession with intent to distribute
methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), and thereafter performed and
attempted to perform an act to promote,
manage, establish and carry on, and to
facilitate the promotion, management,
establishment and carrying on of such
unlawful activity.
(Emphasis added.) The plea agreement that Myers signed
explicitly stated that charge was the subject of his guilty plea.
As noted above, the Travel Act lists a number of
violations that qualify as unlawful acts under the statute. The
question here is whether the specific “unlawful activity” with
which a defendant is charged from the list in § 1952(b) is an
element of the offense. Put another way, the question is
whether it is necessary to identify a specific unlawful act to
MYERS V. SESSIONS 13
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 § 1952(b) without specifying or
reaching agreement on which crime.
In the Ninth Circuit, a specific “unlawful activity” is an
element of a Travel Act offense. See United States v. Nader,
542 F.3d 713, 715–16 (9th Cir. 2008) (explaining that the
defendants violated the Travel Act by using telephones to
conduct an unlawful prostitution business); United States v.
Bertman, 686 F.2d 772, 774 (9th Cir. 1982) (“When the
unlawful activity charged in the indictment is the violation of
state law, the commission of or the intent to commit such a
violation is an element of the federal offense.”).4
4
The same appears to be true in most of the other circuits. See, e.g.,
United States v. Halloran, 821 F.3d 321, 332 (2d Cir. 2016) (stating that
a Travel Act conviction “based on bribery requires an underlying violation
of a federal or state bribery statute”); United States v. Dvorkin, 799 F.3d
867, 876 (7th Cir. 2015) (explaining that the Travel Act requires “the
intent to commit a specified unlawful act”); United States v. Driver,
535 F.3d 424, 430 (6th Cir. 2008) (“The government alleged that the
crime promoted, managed, established, carried on, or facilitated was the
drug conspiracy discussed above.”); United States v. Welch, 327 F.3d
1081, 1097 (10th Cir. 2003) (explaining that a Travel Act conviction
requires a designated “unlawful activity”); United States v. Burns,
298 F.3d 523, 538 (6th Cir. 2002) (rejecting a challenge to a Travel Act
conviction based on insufficient evidence where the record showed that
the defendant committed an overt act in furtherance of a drug conspiracy);
United States v. Woodward, 149 F.3d 46, 66 (1st Cir. 1998) (stating the
elements of a Travel Act conviction and citing the Massachusetts gratuity
statute as the “unlawful activity”); see also Deptula v. Attorney Gen. of
U.S., 642 F. App’x 184, 187–88 (3d Cir. 2016) (“Moreover, each
alternative version must involve one of the specified types of ‘unlawful
activity’ enumerated in Section 1952(b)(i).”).
14 MYERS V. SESSIONS
Myers was convicted in the Northern District of Texas,
which is within the Fifth Circuit. It appears to us that the Fifth
Circuit also requires the identification of a specific “unlawful
activity” to support a Travel Act conviction. See, e.g., United
States v. Rodriguez-Duberney, 326 F.3d 613, 617 (5th Cir.
2003) (holding that a district court could consider an
indictment to determine if a prior offense made a defendant
eligible for a sentencing enhancement because “[a] jury was
required to find drug trafficking in order to convict [the
defendant] of the Travel Act violation”); United States v.
Stanley, 765 F.2d 1224, 1241–42 (5th Cir. 1985) (denying an
appeal challenging a Travel Act conviction and explaining
that, “[i]n its charge to the jury, the trial court defined
‘unlawful activity’ as . . . includ[ing] the distribution of
marijuana or the possession of marijuana with intent to
distribute it in violation of federal law” and holding that the
evidence in the record supported a conclusion that a
defendant’s decision to travel to Dallas was “to facilitate the
marijuana transaction.” (internal quotation marks omitted)).
The Fifth Circuit cases cited by Myers do not demonstrate
the contrary. The task of analyzing those cases is made more
difficult because in none of the cases does the issue we must
resolve appear to be the issue actually considered and
discussed by the Fifth Circuit. That may not be surprising
given that the concentration on the categorical approach, and
in particular upon the divisibility of criminal statutes for
application of the modified categorical approach, is a
relatively recent concern.
The case principally relied upon by Myers is United
States v. Logan, 949 F.2d 1370 (5th Cir. 1991). Myers cites
the case because the elements of the Travel Act are described
in terms of “unlawful activity” without including a
MYERS V. SESSIONS 15
description of a specific violation. So, for instance, one
element is described as travel “with the specific intent to
promote, manage, establish, or carry on—or distribute the
proceeds of—unlawful activity.” Id. at 1380–81 (emphasis
omitted). In that case the indictment charged a number of
different drug crimes as well as violations of the Travel Act
by two different defendants. Id. at 1373. The challenge to
the Travel Act convictions was to the sufficiency of evidence,
not to any failure to specify the underlying unlawful activity.
Id. at 1380. It was always clear that the unlawful activity
consisted of controlled substances offenses. No other type of
“unlawful activity” as defined in the Travel Act was at issue.
As described by the Fifth Circuit, the relevant counts of the
indictment for which the defendants were found guilty by the
jury specified the unlawful activity as the “intent to facilitate
the carrying on of a drug distribution business.” Id. at
1381–82.
The same is true for another case cited by Myers, United
States v. Millet, 123 F.3d 268 (5th Cir. 1997). Again, the
challenge was to the sufficiency of evidence, but in the course
of its discussion the court stated that the indictment properly
charged a violation of the Travel Act, including that it
“properly identifie[d] the unlawful activities,” in that case
extortion including violation of the Hobbs Act. Id. at 278.
Myers also relies upon United States v. Jones, 642 F.2d
909 (5th Cir 1981). In that case the defendant challenged his
Travel Act conviction on the grounds that such a conviction
required proof that the activity was unlawful “in the state of
destination subsequent to the interstate travel,” and that the
travel was necessary to facilitate the commission of the
unlawful act. Id. at 912. The court rejected the challenges as
based on incorrect understandings of the law. In the course
16 MYERS V. SESSIONS
of its discussion the court quoted an instruction given to the
jury that identified the elements of the offense as including
“specific intent to promote an unlawful activity,” without
specifying the activity. Id. at 915. The court went on to
observe, however, that “[f]ailure to give an instruction that is
covered adequately elsewhere in the charge is not reversible
error.” Id. The court specifically stated that “[b]y their
verdict, the jurors found that Jones engaged in the ‘unlawful
activity’ of running a ‘business enterprise involving
gambling.’” Id. at 912.
Where the Fifth Circuit may differ from our court and
other circuits pertains to a somewhat different question:
whether a Travel Act conviction requires a finding that the
defendant’s activity was unlawful under a specific state or
federal statute. The D.C. Circuit discussed that question at
some length, including the different approach taken by the
Fifth Circuit, in United States v. Jones, 909 F.2d 533, 537–38
(D.C. Cir. 1990). It concluded that, in contrast to most
circuits (including ours), the Fifth Circuit does not require
that the specific elements of the underlying law that constitute
the unlawful activity be found as elements of the Travel Act
offense. Rather, it is sufficient under Fifth Circuit law to
specify a generic version of the predicate underlying unlawful
activity. Id. at 537. For example, as described by the Fifth
Circuit in another of its opinions, it would be enough to
identify the unlawful activity as “‘[a]rson’ [because that] is a
commonly used and understood word . . . . There is no
requirement that the jury be instructed on the Maryland
definition of arson.” United States v. Conway, 507 F.2d
1047, 1051–52 (5th Cir. 1975). The D.C. Circuit went on to
explain why it concluded that the Fifth Circuit’s approach is
incorrect, and, as noted, our court’s approach is different as
well.
MYERS V. SESSIONS 17
That does not say, however, that the Fifth Circuit does not
treat the underlying unlawful activity as an element of a
Travel Act violation, albeit in generic form rather than tied to
a specific state or federal statute. Neither party identified a
Fifth Circuit case that involves a Travel Act conviction in
which the underlying unlawful activity is not specified, and
we did not find one either.
2. The Shepard Documents
The Supreme Court has noted that looking at the
underlying indictment may be useful in some instances to
determine whether listed items in a statute are elements or
means. Mathis, 136 S. Ct. at 2256–57. As noted in
Descamps, “[a] prosecutor charging a violation of a divisible
statute must generally select the relevant element from its list
of alternatives.” 570 U.S. at 272. Conducting that
examination in the Fifth Circuit cases that the parties here
identified supports the conclusion that the Fifth Circuit
requires the identification of the underlying unlawful activity
as an element of a Travel Act violation, even though it does
not require incorporation of the elements of a specific state or
federal statute covering that underlying activity as elements
of the Travel Act offense.
Looking at the underlying documents in Myers’s own
case points to the same conclusion. The Shepard documents
show that the charge against Myers under the Travel Act was
for interstate travel to promote or facilitate a “business
enterprise involving . . . narcotics or controlled substances.”
See 18 U.S.C. § 1952(b). The superseding information
described the specific “unlawful activity” as the “possession
with intent to distribute methamphetamine, in violation of
21 U.S.C. § 841(a)(1).” The plea agreement stated that
18 MYERS V. SESSIONS
Myers pleaded guilty to “the offense alleged in Count One of
Superseding Information.” Myers argues that the BIA erred
in referencing the superseding information because it
conflated conduct with elements. But the BIA only peeked at
the superseding information to determine if a listed item from
the definition of “unlawful activity” was included as an
element of the offense, not to find out the specific nature of
Myers’s offense. See Mathis, 136 S. Ct. at 2256.
3. Pattern Jury Instructions
Myers cites the pattern jury instructions used in the Fifth
Circuit at the relevant time to argue that identification of a
specific unlawful act was not required for a Travel Act
conviction. We are not persuaded. To begin with, pattern
jury instructions are not precedent and cannot supersede Fifth
Circuit decisions. Nor do they clearly demonstrate the point
that Myers is trying to make.
Myers quotes Fifth Circuit Pattern Criminal Jury
Instruction § 2.74 (2015 ed.), for instance, as including the
following as one of three elements for a violation of the
Travel Act: “Third: That subsequent to the act of travel [use
of the mail] [use of any facility] in interstate commerce
[foreign commerce] the defendant did knowingly and
willfully promote, manage, establish, or carry on [distribute
the proceeds of] [commit any crime of violence to further]
such unlawful activity.” Myers also observes that under the
jury instruction note, the jury is informed that “unlawful
activity is defined under 18 U.S.C. § 1952(b)” and “[t]he
appropriate one(s) should be specified and addressed, as
necessary, in the instructions provided to the jury.” Fifth
Circuit Pattern Criminal Jury Instruction § 2.74 note
(emphasis added by Myers). Myers highlights the word
MYERS V. SESSIONS 19
“one(s)” to support his contention that more than one
unlawful activity can be at issue in the Fifth Circuit.
The pattern instructions cannot support the weight Myers
attempts to place on them. On their face, they are tools
intended for modification by the district court for use in a
particular case. Where it is clear from other jury instructions
what unlawful activity is charged, it may not be necessary to
repeat the description of the unlawful activity. In the
presumably rare case where more than one type of unlawful
activity is alleged, the district court is directed to “specif[y]
and address[ the instructions], as necessary.” See id. That
does not suggest lumping the multiple forms of unlawful
activity together. Rather, we infer that the district court
would adapt the pattern instruction as needed to specify the
allegedly unlawful activity, as Fifth Circuit precedent
suggests is required.
In sum, whether the Fifth Circuit requires that the precise
“unlawful activity” among the alternatives be listed in §
1952(b) of the Travel Act does not appear to have been
directly addressed by that court. It may be that the subject
has not arisen because it is likely a rare case when the nature
of the unlawful activity is at all in doubt. Nonetheless, it
appears to us from the Fifth Circuit cases that the
specification of “unlawful activity” is treated as an element
for a conviction under the Travel Act.
B. Myers’s Conviction
Because the Travel Act is divisible, the modified
categorical approach may be employed to determine whether
Myers’s conviction was for a controlled substance offense.
Under the modified categorical approach, “a sentencing [or
20 MYERS V. SESSIONS
immigration] court looks to a limited class of documents . . .
to determine what crime, with what elements, a defendant
was convicted of.” Mathis, 136 S. Ct. at 2249. There are no
jury instructions to review in this case because Myers pleaded
guilty to violating the Travel Act, but the superseding
information and plea agreement show that Myers pleaded
guilty to 18 U.S.C. § 1952(a)(3), and that the “unlawful
activity” was “possession with intent to distribute
methamphetamine.” Myers’s conviction was for a controlled
substance offense. See Johnson v. I.N.S., 971 F.2d 340, 342
(9th Cir. 1992) (holding that, where a petitioner pleaded
guilty to “traveling in interstate commerce with the intention
of distributing the proceeds derived from the unlawful
distribution of narcotics and controlled substances,” this court
“ha[d] no hesitancy in concluding that [the defendant] was
convicted of violating a law relating to a controlled
substance” (some alterations incorporated) (internal quotation
marks omitted)); Lara-Chacon v. Ashcroft, 345 F.3d 1148,
1156 (9th Cir. 2003) (“Johnson applies where an immigrant
explicitly pleads guilty to (or the jury finds) a violation of the
specific statutory provision that obviously relates to drugs.”).
Accordingly, Myers was properly held to be removable.
Myers argues that Johnson is irreconcilable with Mellouli
v. Lynch, 135 S. Ct. 1980 (2015). In Mellouli, a lawful
permanent resident pleaded guilty to a misdemeanor offense
under Kansas law for possession of drug paraphernalia.
Neither the criminal charge nor the plea agreement identified
a specific controlled substance. Id. at 1983. At the time,
Kansas’s controlled substance schedules included at least
nine substances not included on the federal schedules. Id. at
1984. The Government alleged that the petitioner was
deportable based on his conviction relating to a controlled
substance. Id. at 1983–84. The Supreme Court rejected that
MYERS V. SESSIONS 21
argument, noting that Kansas’s schedules were overinclusive
as compared to their federal counterpart and further that the
BIA’s approach to drug paraphernalia possession offenses
was not supported by statute or logic. Id. at 1984. In
contrast, Myers was convicted of a federal crime, the Travel
Act, that defines “controlled substances” in terms of the
federal CSA and its schedules. See 18 U.S.C. § 1952(b). His
crime related to possession with intent to distribute
methamphetamine, not possession of paraphernalia. Mellouli
does not speak to Myers’s case. We therefore conclude that
Myers’s conviction qualifies as a controlled substance offense
under the modified categorical approach and we deny the
petition for review as to that issue.
III. Cancellation of Removal
The BIA concluded that Myers is ineligible for
cancellation of removal. A person seeking cancellation of
removal must have “resided in the United States continuously
for 7 years after having been admitted in any status.”
8 U.S.C. § 1229b(a). The period is “deemed to end,” among
other times, “when the alien is served a notice to appear under
section 1229(a) of this title.” 8 U.S.C. § 1229b(d)(1).
The BIA concluded that Myers is ineligible for
cancellation of removal “because the notice to appear was
served upon him in January 2013,” which is less than seven
years after he was admitted to the United States in September
2006. The IJ did not make any finding regarding when the
notice was served on Myers. The IJ decision simply stated
that he was “placed into proceedings on January 3, 2013.”
Myers contends that he was not served with the notice
until October 30, 2015, a date that is more than seven years
22 MYERS V. SESSIONS
after his admission in September 2006. The notice contained
a certificate of service signed by an immigration officer, but
the space for the date of service was left blank. The form
shows Myers’s signature and an immigration officer’s
signature related to a request for a prompt hearing, but those
signatures are dated October 30, 2015.
The Government acknowledges that the document is
unclear, and it does not dispute the plausible contention that
Myers was not served until October 2015. The BIA could not
have relied upon any finding by the IJ regarding the date of
service, as the IJ made no such finding. The conclusion by
the BIA that Myers is ineligible because he lacked the seven
years of presence then required by the statute was not
supported by substantial evidence.
The Government states that “these dates are ultimately
irrelevant” because, under 8 U.S.C. § 1229b(d)(1)(B),
Myers’s “continuous physical presence in the United States”
ended when he violated the Travel Act in 2011. The
Government argues that, because Myers had not resided in
the United States for seven years in 2011, any error was
harmless. See 8 U.S.C. § 1229b(a)(2).
The problem with the Government’s argument is that the
BIA did not make any such determination.5 “In reviewing the
5
Moreover, the cases that the Government cites to support its position
detail situations in which it was clear from the record that the agency
actually considered a relevant issue. See Vides-Vides v. I.N.S., 783 F.2d
1463, 1469 (9th Cir. 1986) (“Although the new IJ failed to expressly state
that he had familiarized himself with the record in the case as required by
8 C.F.R. § 242.8(b), the failure to do so was harmless error since the IJ
began the second hearing by summarizing what went on at and subsequent
to the first hearing. There is therefore no question that the new IJ was in
MYERS V. SESSIONS 23
decision of the BIA, we consider only the grounds relied
upon by that agency.” Andia v. Ashcroft, 359 F.3d 1181,
1184 (9th Cir. 2004). “If we conclude that the BIA’s decision
cannot be sustained upon its reasoning, we must remand to
allow the agency to decide any issues remaining in the case.”
Id. This case must therefore be remanded to determine
whether Myers is eligible for cancellation of removal.
IV. Conclusion
The BIA correctly determined that the Travel Act is
divisible and that Myers is removable based on his conviction
for a controlled substance offense. As to that issue, the
petition for review is denied. However, the conclusion that
Myers is ineligible for cancellation of removal due to an
insufficient period of presence in this country was not
supported by substantial evidence. The petition for review is
granted in part. The matter is remanded for consideration of
the claim for cancellation of removal.
PETITION FOR REVIEW GRANTED IN PART
AND DENIED IN PART; REMANDED.
fact familiar with the record.”); Najmabadi v. Holder, 597 F.3d 983,
990–91 (9th Cir. 2010) (affirming the denial of a motion to reopen
removal proceedings where, “[t]hough the board did not directly reference
[all of the petitioner’s] statements,” it “adequately considered [the
petitioner’s] evidence and sufficiently announced its decision,” and the
Court “ha[d] no doubt that the BIA would reach the same decision if we
asked it to focus more closely on the contents of [the petitioner’s]
affidavit.”). That is not the case here.