Jaime Lazo v. Robert Wilkinson ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME LAZO, AKA Jaime Lazo No. 14-73182
Venegas,
Petitioner, Agency No.
A012-666-503
v.
ROBERT M. WILKINSON, Acting OPINION
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 7, 2020*
Pasadena, California
Filed February 26, 2021
Before: Marsha S. Berzon and Daniel P. Collins, Circuit
Judges, and Gary S. Katzmann, ** Judge.
Opinion by Judge Collins
*
The panel unanimously concludes that this case is suitable for
decision without oral argument. See FED. R. APP. P. 34(a)(2)(C).
**
The Honorable Gary S. Katzmann, Judge for the United States
Court of International Trade, sitting by designation.
2 LAZO V. WILKINSON
SUMMARY ***
Immigration
Denying Jaime Lazo’s petition for review of a decision
of the Board of Immigration Appeals, the panel held that:
1) California Health and Safety Code § 11350, possession of
a controlled substance, is divisible as to controlled
substance; and 2) because Lazo’s conviction was for
cocaine, a federal controlled substance, Lazo was properly
ordered removed for an offense “relating to a controlled
substance” under Immigration and Nationality Act
§ 237(A)(2)(B)(i).
The panel observed that § 11350 is not categorically an
offense “relating to a controlled substance” because
California’s relevant list of controlled substances is
overbroad in comparison to the Controlled Substances Act
(“CSA”). However, the panel concluded that Lazo’s
conviction qualified as an offense “relating to controlled
substance” under the so-called “modified categorical”
approach.
In so concluding, the panel held that § 11350 is divisible
as to controlled substance, observing that this court in United
States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en
banc), held that California Health and Safety Code § 11352
is divisible as to controlled substance. The panel concluded
that Martinez-Lopez’s reasoning applies equally to § 11350,
explaining that: 1) there is no meaningful difference between
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LAZO V. WILKINSON 3
the text of the statutes; 2) the same California caselaw, which
Martinez-Lopez found dispositive, applies equally to
§ 11350; and 3) just as with § 11352, the pattern jury
instruction for § 11350 requires that the controlled substance
be identified in the instructions and that, in order to convict,
the jury must unanimously find that the defendant possessed
that substance.
The panel further concluded that Lazo’s conviction
documents unambiguously established that his conviction
was for cocaine, a controlled substance under the CSA.
Therefore, the panel concluded that Lazo’s conviction was a
violation of law “relating to a controlled substance” that
rendered him removable.
COUNSEL
Carlos A. Cruz, Alhambra, California, for Petitioner.
Melissa Neiman-Kelting and M. Jocelyn Lopez Wright,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
COLLINS, Circuit Judge:
Jaime Lazo, a native and citizen of Mexico, petitions for
review of the decision of the Board of Immigration Appeals
(“BIA”), which held that Lazo’s 1999 conviction for simple
possession of cocaine in violation of California Health and
Safety Code § 11350 qualifies as a “controlled substance
4 LAZO V. WILKINSON
offense,” thereby rendering him removable under
§ 237(a)(2)(B)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1227(a)(2)(B)(i). Although California
Health and Safety Code § 11350, by its terms, applies to a
broader range of “controlled substance[s]” than the narrower
federal definition that governs under § 237(a)(2)(B)(i), we
agree with the BIA that Lazo’s conviction nonetheless
qualifies under the so-called “modified categorical”
approach to analyzing prior convictions. Tejeda v. Barr,
960 F.3d 1184, 1186–87 (9th Cir. 2020). Applying that
approach here, we conclude that § 11350 is a “divisible”
statute that defines multiple alternative offenses, depending
upon which controlled substance was possessed. Because
Lazo’s conviction under § 11350 was for possession of
cocaine, and because cocaine qualifies as a “controlled
substance” under the applicable federal definition, it follows
that Lazo was convicted of an offense “relating to a
controlled substance” within the meaning of
§ 237(a)(2)(B)(i). He was therefore properly ordered to be
removed from the United States under that section, and we
deny his petition for review.
I
Lazo is a native and citizen of Mexico who was admitted
to the United States as a lawful permanent resident on
October 13, 1961. After being convicted in the 1980s on a
federal charge of conspiracy to possess cocaine base with
intent to distribute, Lazo was the subject of a previous
deportation proceeding in the early 1990s. That proceeding
was terminated in Lazo’s favor in 1991 after an immigration
judge granted him a waiver of inadmissibility under the
since-repealed provisions of former § 212(c) of the INA,
8 U.S.C. § 1182(c) (Supp. II 1990), repealed by Pub. L. No.
104-208, Div. C, § 304(b), 110 Stat. 3009, 3009–597 (1996).
LAZO V. WILKINSON 5
The current removal proceedings were instituted in 2008
after Lazo was convicted earlier that year of burglary in
violation of California Penal Code § 459. The Department
of Homeland Security (“DHS”) alleged that § 459 was an
aggravated felony warranting removal under INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). We
subsequently held, however, that a violation of § 459 was
not categorically an aggravated felony. See Hernandez-Cruz
v. Holder, 651 F.3d 1094, 1100–01 (9th Cir. 2011). DHS
then withdrew that removability charge in 2012 and instead
filed an additional charge alleging that Lazo was removable
under INA § 237(a)(2)(B), based on a conviction for an
offense “relating to a controlled substance.” See 8 U.S.C.
§ 1227(a)(2)(B)(i). The basis for this charge was Lazo’s
1999 conviction in California state court for possession of
cocaine in violation of California Health and Safety Code
§ 11350(a). 1
1
At the time, § 11350(a) provided as follows:
Except as otherwise provided in this division, every
person who possesses (1) any controlled substance
specified in subdivision (b) or (c), or paragraph (1) of
subdivision (f) of Section 11054, specified in
paragraph (14), (15), or (20) of subdivision (d) of
Section 11054, or specified in subdivision (b), (c), or
(g) of Section 11055, or (2) any controlled substance
classified in Schedule III, IV, or V which is a narcotic
drug, unless upon the written prescription of a
physician, dentist, podiatrist, or veterinarian licensed
to practice in this state, shall be punished by
imprisonment in the state prison.
CAL. HEALTH & SAFETY CODE § 11350(a) (1999). Cocaine was (and
remains) a “controlled substance” under “subdivision (b) . . . of Section
11055.” Id.; see also id. § 11055(b)(6) (2021); id. § 11055(b)(6) (1999).
6 LAZO V. WILKINSON
The immigration judge sustained the charge of
removability and denied Lazo’s request for voluntary
departure, which was ultimately the only form of relief from
removal that Lazo sought. The immigration judge
concluded that § 11350(a)’s sweep was too broad to be a
categorical match for a “controlled substance” offense under
INA § 237(a)(2)(B)(i), but she went on to hold that
§ 11350(a) was a divisible statute and that, under a modified
categorical approach, Lazo’s conviction for possession of
cocaine under that statute counted as a controlled substance
offense. The BIA upheld that ruling, expressly agreeing that,
under the modified categorical approach, Lazo’s conviction
under § 11350(a) was a controlled substance offense under
INA § 237(a)(2)(B)(i). Lazo timely petitions for review, and
we have jurisdiction under INA § 242, 8 U.S.C. § 1252.
“We review de novo whether a particular conviction under
state law is a removable offense.” Arellano Hernandez v.
Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016).
II
Under § 237(a)(2)(B)(i) of the INA, an alien is generally
removable if he or she has been convicted of a violation of a
federal, state, or foreign law “relating to a controlled
substance,” as that term is defined in § 102 of the Controlled
Substances Act (“CSA”), 21 U.S.C. § 802. See 8 U.S.C.
§ 1227(a)(2)(B)(i). 2 Under that cross-referenced definition,
In the current version of § 11350(a), the list of controlled substances has
changed somewhat, as have the prescribed punishments, but the core
language defining the offense remains substantially the same. See infra
note 6. Our analysis in this case thus fully applies to both versions of the
statute.
2
Section 237(a)(2)(B)(i) exempts from its removability rule any
conviction for “a single offense involving possession for one’s own use
LAZO V. WILKINSON 7
the “term ‘controlled substance’ means 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), and “cocaine” is specifically included in “schedule
II,” id. § 812(c), sched. II(A)(4). Contrary to Lazo’s
contention, we conclude that his 1999 conviction for
possession of cocaine in violation of California Health and
Safety Code § 11350 is an offense relating to a “controlled
substance,” as that term is defined in the CSA. 3
A
In assessing whether a conviction for a particular state
offense counts as one “relating to a controlled substance”
under § 237(a)(2)(B)(i), we begin by applying the so-called
“categorical approach,” under which a “state conviction
triggers removal only if, by definition, the underlying crime
falls within a category of removable offenses defined by
federal law.” Mellouli v. Lynch, 575 U.S. 798, 805 (2015)
(emphasis added); see also Tejeda, 960 F.3d at 1186–87.
Applying the categorical approach to § 237(a)(2)(B)(i), the
Supreme Court has explained that this “removal provision is
of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i). No party
contends that this clause has any bearing on the analysis in this case.
3
We reject the Government’s argument that Lazo failed to exhaust
his challenge to the divisibility of § 11350 by not raising it in his brief
before the BIA and that we therefore lack jurisdiction over the issue.
Despite what Lazo argued in his brief below, the BIA decided the merits
of this issue. Specifically, the BIA held that, after recognizing that
§ 11350 is not “categorically a controlled substance offense,” the
immigration judge “properly” proceeded to then apply a “modified
categorical analysis.” We have long held that “claims addressed on the
merits by the BIA are exhausted” and are therefore within our
jurisdiction to review. Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874
(9th Cir. 2008).
8 LAZO V. WILKINSON
. . . satisfied when the elements that make up the state crime
of conviction relate to a federally controlled substance” as
defined in CSA § 102. Mellouli, 575 U.S. at 811 (emphasis
added). In Mellouli, the Court noted that the Kansas drug
paraphernalia statute at issue there relied on a list of drugs
that “included at least nine substances” that were not
included within the CSA’s definition. Id. at 808. As such,
the Court held, the Kansas statute was not a categorical
match for purposes of § 237(a)(2)(B)(i). Id. at 808, 813.
Relying on Mellouli, we have similarly recognized that
the list of controlled substances applicable under many of
California’s controlled substances laws “include[s]
‘numerous substances that are not similarly regulated by the
CSA.’” Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir.
2009) (citation omitted); see also United States v. Martinez-
Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc).
Because the controlled-substance-possession offense set
forth in California Health and Safety Code § 11350(a)
likewise relies on an overbroad list of controlled substances
comparable to the related California controlled-substance-
trafficking statute at issue in Mielewczyk and Martinez-
Lopez, compare Cal. Health & Safety Code § 11352 with id.§ 11350; see also infra note 6, it follows that § 11350 is not
categorically an offense “relating to a controlled substance”
under INA § 237(a)(2)(B)(i). Indeed, the Government does
not contest this point in this court.
B
Because § 11350 is not a categorical match to the offense
described in INA § 237(a)(2)(B)(i), we next ask whether
Lazo’s conviction might nonetheless qualify under the
“modified categorical approach.” We conclude that it does.
LAZO V. WILKINSON 9
1
Under the “modified categorical approach,” we must
first consider whether § 11350 is “divisible,” meaning that it
“list[s] elements in the alternative, and thereby define[s]
multiple crimes.” Mathis v. United States, 136 S. Ct. 2243,
2249 (2016) (emphasis added). If § 11350 does set out
alternative offenses with different elements, then we may
“consult a limited class of documents, such as indictments
and jury instructions, to determine which alternative formed
the basis of the [alien’s] prior conviction.” Descamps v.
United States, 570 U.S. 254, 257 (2013). And if the
particular alternative that those documents reveal “form[ed]
the basis of the conviction” under state law is categorically
an offense relating to a “controlled substance” as defined
under the CSA, then it qualifies as a removable offense
under § 237(a)(2)(B)(i) of the INA. Villavicencio v.
Sessions, 904 F.3d 658, 664 (9th Cir. 2018). By contrast, if
a statute “lists alternative means of fulfilling one (or more)”
of the “crime’s elements,” that is not enough to establish that
the statute is divisible. Mathis, 136 S. Ct. at 2253 (emphasis
added).
In deciding whether “an alternatively phrased list” in a
state statute sets forth alternative “elements or means,” a
court should consider any “authoritative sources of state
law,” such as the statutory text or controlling decisions of the
state courts. Mathis, 136 S. Ct. at 2256; see also Martinez-
Lopez, 864 F.3d at 1039. In the absence of such sources, the
“record of a prior conviction itself” may clearly show, in the
“indictment and jury instructions,” that “the statute contains
a list of elements, each one of which goes toward a separate
crime.” Mathis, 136 S. Ct. at 2256–57. If, for example, a
jury need not unanimously agree as to which of the listed
alternatives was satisfied in a particular case, that is a clear
10 LAZO V. WILKINSON
sign that they are “alternative methods of committing one
offense” and not alternative elements of separate offenses.
Id. at 2256 (simplified).
We addressed a similar question in Martinez-Lopez,
where we held that the listing of alternative controlled
substances set forth in the related drug-trafficking offense
defined in California Health and Safety Code § 11352 “does
not simply describe alternative methods of committing one
offense,” but rather defines alternative elements. 864 F.3d
at 1040 (simplified). 4 Reviewing the authoritative
California caselaw, we noted that the California Supreme
Court has “recognize[d] multiple section 11352 convictions
for a single act as it relates to multiple controlled
substances,” and we therefore concluded that the state high
court had “implicitly held that the controlled substance
requirement is an element.” Id. at 1041. We placed
particular weight on California cases construing “section
654 of the California Penal Code, which prohibits multiple
sentences for a single ‘act or omission that is punishable in
different ways by different provisions of law.’” Id. at 1040.
This caselaw, we concluded, confirmed that, in California
drug cases involving several different controlled substances,
(1) “multiple sentences are proper so long as the defendant
has multiple criminal objectives”; and (2) “multiple
convictions” remain proper “even when a defendant has a
single criminal objective.” Id. We further explained that,
4
Whereas § 11350 punishes anyone “who possesses . . . any
controlled substance” that is on a specified list of such substances, see
CAL. HEALTH & SAFETY CODE § 11350(a), the offense defined in
§ 11352 applies to anyone “who transports, imports into this state, sells,
furnishes, administers, or gives away, or offers to transport, import into
this state, sell, furnish, administer, or give away, or attempts to import
into this state or transport . . . any controlled substance” on substantially
the same list, see id. § 11352(a).
LAZO V. WILKINSON 11
under this authority, defendants in California “are routinely
subjected to multiple convictions under a single statute for a
single act as it relates to multiple controlled substances.” Id.
We also noted that the California pattern jury instructions
applicable to an offense under § 11352 “require a jury to fill
in a blank identifying ‘a controlled substance’—i.e., only
one—demonstrating that the jury must identify and
unanimously agree on a particular controlled substance.” Id.
at 1041. In light of these considerations, we held that
“section 11352 is divisible with regard to its controlled
substance requirement.” Id. 5
For several reasons, we conclude that Martinez-Lopez’s
reasoning as to California Health and Safety Code § 11352
applies equally to § 11350, and that the latter statute is
therefore likewise divisible as to its controlled substance
element.
First, there is no meaningful difference between the
relevant text of § 11350 and § 11352. Although the listings
of controlled substances contained in each statute have
changed in minor and immaterial respects between 1999
(when Lazo was convicted) and today, the corresponding
contemporaneous lists in each statute are virtually identical
to one another, both in their 1999 versions and in their
current versions. 6 Given the materially identical wording of
5
Martinez-Lopez also separately addressed whether § 11352(a) was
divisible as to its actus reus, which (as noted above, see supra note 4)
lists multiple alternative verb phrases. See 864 F.3d at 1041–43.
Because the operative language in § 11350(a) uses only one verb—
“possesses”—no such additional issue is presented here.
6
Compare CAL. HEALTH & SAFETY CODE § 11350(a) (2021)
(applying to “(1) any controlled substance specified in subdivision (b),
(c), (e), or paragraph (1) of subdivision (f) of Section 11054, specified in
12 LAZO V. WILKINSON
the relevant language in both statutes, we lack any textual
basis for reaching a different conclusion as to § 11350 than
Martinez-Lopez did with respect to § 11352.
We reached the same conclusion in Tejeda, 960 F.3d at
1186, where we addressed the divisibility of California
Health and Safety Code § 11550(a), which recites a
substantially similar list as § 11352(a) in providing that a
“person shall not use, or be under the influence of[,] any
controlled substance.” As we explained, under Martinez-
Lopez, other California “statutes incorporating those lists”—
such as § 11550—“are divisible and the modified categorical
approach applies.” 960 F.3d at 1186. Because § 11350 uses
much of the same language as § 11352 and § 11550 in
borrowing a similar list, Tejeda confirms that § 11350 is
divisible under Martinez-Lopez. See also United States v.
Ocampo-Estrada, 873 F.3d 661, 668 (9th Cir. 2017)
(concluding that Martinez-Lopez’s reasoning “logically
extends past section 11352 to other California drug laws that
paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or
specified in subdivision (b) or (c) of Section 11055, or specified in
subdivision (h) of Section 11056, or (2) any controlled substance
classified in Schedule III, IV, or V which is a narcotic drug, unless upon
the written prescription of a physician, dentist, podiatrist, or veterinarian
licensed to practice in this state”) with id. § 11352(a) (2021) (reciting
identical list with immaterial grammatical changes); compare also id.
§ 11350(a) (1999) (applying to “(1) any controlled substance specified
in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section
11054, specified in paragraph (14), (15), or (20) of subdivision (d) of
Section 11054, or specified in subdivision (b), (c), or (g) of Section
11055, or (2) any controlled substance classified in Schedule III, IV, or
V which is a narcotic drug, unless upon the written prescription of a
physician, dentist, podiatrist, or veterinarian licensed to practice in this
state”) with id. § 11352 (1999) (reciting an identical list, except for the
addition of subdivision “(e)” of “Section 11054,” which relates to certain
depressants).
LAZO V. WILKINSON 13
criminalize an activity relating to other referenced controlled
substances” and applying that reasoning to the possession-
for-sale statute, Cal. Health & Safety Code § 11378).
Second, the same California caselaw construing Penal
Code § 654, which Martinez-Lopez found dispositive as to
§ 11352, also applies equally to § 11350. More than
60 years ago, the California Court of Appeal upheld separate
convictions (with concurrent sentences) for simultaneous
possession of three different drugs under the predecessor
statute to § 11350. See People v. Lopez, 337 P.2d 570, 574–
75 (Cal. Ct. App. 1959). 7 The court in Lopez expressly
rejected the defendant’s argument that his multiple
convictions violated Penal Code § 654, holding that “the
possession of each of the three different and distinct types of
narcotics, even at the same time, constituted three separate
offenses.” Id. at 574. The California courts have repeatedly
reaffirmed the vitality of Lopez and of the rule that
simultaneous possession of multiple controlled substances
may warrant separate convictions and separate punishments.
See, e.g., People v. Barger, 115 Cal. Rptr. 298, 304 (Cal. Ct.
App. 1974) (“California courts have uniformly held that
7
The defendant in Lopez was charged with three counts of simple
“possession of heroin, marijuana and amidone, in violation of Section
11500, Health & Safety Code.” 337 P.2d at 571. At the time, that
provision prohibited both simple possession of narcotics, as well as the
various transportation and sale activities now covered by § 11352. See
1955 Cal. Stat. 2675, ch. 1466, § 1 (enacting the version of § 11500
applicable in 1959). In 1972, the California Legislature repealed
§ 11500 and replaced it with separate provisions proscribing simple
possession (§ 11350) and transport and sales (§ 11352). See 1972 Cal.
Stat. 2986, 2987, 3011–12, ch. 1407, §§ 2, 3; see also People v. Rouser,
69 Cal. Rptr. 2d 563, 565 (Cal. Ct. App. 1997) (noting that the defendant
in Lopez was “separately convicted under Health and Safety Code
section 11500 [now § 11350] for possession of heroin, of marijuana and
of amidone”).
14 LAZO V. WILKINSON
section 654 does not preclude multiple punishment for
simultaneous possession of various narcotic drugs.” (citing,
inter alia, Lopez)); see also People v. Monarrez, 78 Cal.
Rptr. 2d 247, 249–50 (Cal. Ct. App. 1998) (citing, inter alia,
Barger and Lopez). The case law construing Penal Code
§ 654—on which Martinez-Lopez relied heavily in reaching
its conclusion as to the divisibility of § 11352—is thus
equally applicable to § 11350. See Martinez-Lopez,
864 F.3d at 1040 (noting that, “as recently as 2012,” the
California Supreme Court had “reaffirmed” that
“simultaneous possession of different items of contraband
are separate crimes” (internal quotation marks omitted)
(quoting People v. Jones, 278 P.3d 821, 827 (Cal. 2012))).
That provides further strong support for concluding that
§ 11350 is divisible as to its controlled substance element.
Third, just as with the pattern jury instruction for
§ 11352, the official California pattern jury instruction
applicable to offenses under § 11350 also requires that the
specific controlled substance be identified in the instructions
and that, in order to convict, the jury must unanimously find
that the defendant possessed that particular substance. See
Jud. Council of Cal., Criminal Jury Instructions, No. 2304
(2020); see also California Jury Instructions—Criminal, No.
12.00 (6th ed. 1996) (same for prior pattern instruction for
§ 11350). Martinez-Lopez’s reliance on this feature of the
§ 11352 pattern jury instruction thus equally applies to
§ 11350. See 864 F.3d at 1041; see also Ocampo-Estrada,
873 F.3d at 668 (noting that Martinez-Lopez’s observation
concerning the pattern jury instruction for § 11352 also
applied to the pattern jury instruction for § 11378, and
LAZO V. WILKINSON 15
therefore supported the view that § 11378 was divisible as to
the controlled substance). 8
Accordingly, in both its current and 1999 versions,
California Health & Safety Code § 11350 is divisible with
regard to substance. 9
8
In Martinez-Lopez, we mistakenly assumed that the pattern
instruction required the “jury to fill in a blank identifying” the controlled
substance at issue, see 864 F.3d at 1041 (emphasis added), when the
pattern instruction unmistakably contemplates that the court will identify
the substance at issue in finalizing the instruction before giving it to the
jury. See JUD. COUNCIL OF CAL., CRIMINAL JURY INSTRUCTIONS, No.
2301 (2020). This immaterial error does not vitiate Martinez-Lopez’s
reasoning on this point, because either way the jury is specifically
instructed that it must unanimously find that a particular substance was
possessed.
9
By contrast, we distinguished Martinez-Lopez and reached the
opposite conclusion in addressing a very differently worded provision in
United States v. Graves, 925 F.3d 1036 (9th Cir. 2019). The statute at
issue in Graves was California Penal Code § 4573.6, which at the
relevant time prohibited, inter alia, the “knowing possession,” in prison,
“of ‘any controlled substances, the possession of which is prohibited by
Division 10 (commencing with Section 11000) of the Health and Safety
Code.’” 925 F.3d at 1040 (quoting CAL. PENAL CODE § 4573.6 (2007)).
We held that, in light of § 4573.6’s use of the plural term “substances”—
which affirmatively indicated that a single possession of multiple
substances counted as only one offense—as well as California caselaw
explicitly endorsing that view, § 4573.6 was not divisible as to the
“controlled substances” element. Id. at 1040–41. For the reasons we
have explained, the statute at issue here is comparable to the ones
addressed in Martinez-Lopez, Tejeda, and Ocampo-Estrada, and is
dissimilar to the one discussed in Graves. Martinez-Lopez and its
progeny therefore control this case.
16 LAZO V. WILKINSON
2
Having concluded that § 11350 is divisible as to the
controlled substance, we may consult “a limited set of
documents ‘to determine which statutory phrase was the
basis for the conviction.’” Martinez-Lopez, 864 F.3d at 1043
(quoting Descamps, 570 U.S. at 263). Specifically, the
documents we may consider include “the charging
document, the terms of a plea agreement, the transcript of
colloquy between the judge and the defendant in which the
factual basis for the plea was confirmed by the defendant,
and comparable judicial records.” Coronado v. Holder,
759 F.3d 977, 985 (9th Cir. 2014). Here, the BIA relied on
the charging documents and the transcript of the guilty-plea
colloquy in Lazo’s California criminal case. All of these
documents unambiguously establish that Lazo’s conviction
was for possession of “cocaine.” And, as noted earlier, see
supra at 6–7, cocaine is a federally controlled substance
under the CSA. See 21 U.S.C. § 812(c), sched. II(a)(4).
Therefore, Lazo’s conviction under § 11350 is a violation of
law “relating to a controlled substance” as defined in the
CSA, and that renders him removable under INA
§ 237(a)(2)(B)(i). See Mellouli, 575 U.S. at 813.
Accordingly, we DENY Lazo’s petition for review.