Villavicienco v. Sessions, 9th Cir., 01-05-18, published
“The panel granted Julio Cesar Villavicencio’s petition for review of the Board of Immigration Appeals decision, concluding that Villavicencio was not removable for a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i) because the statutes under which he was convicted of conspiracy to possess drugs, Nevada Revised Statutes §§ 199.480 and 454.351, are overbroad and indivisible.
The panel held that the Nevada conspiracy statute, NRS § 199.480, is overbroad when compared to the generic definition of conspiracy because the Nevada statute lacks the requisite “overt act” element. Therefore, the panel concluded that the categorical approach may not be used to determine removability. The panel also concluded that application of the modified categorical approach is foreclosed because this court has already determined that NRS § 199.480 is indivisible.
The panel further held that NRS § 454.351, which covers any drug which may not be lawfully introduced into interstate commerce under the Federal Food, Drug and Cosmetic Act, is categorically overbroad relative to the substances controlled under 21 U.S.C. § 802. The panel also concluded that, although the Nevada statute lists multiple means of violation, i.e., possessing, procuring, or manufacturing,
because jurors need not agree on the means of the violation, the statute must still be regarded as indivisible. Accordingly, the panel held that the statute cannot be used as a predicate offense to support removal
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.”
PANEL: Mary M. Schroeder and Johnnie B. Rawlinson, Circuit Judges, and William H. Stafford, Jr.,* District Judge.
* The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida, sitting by designation.
OPINION BY: Judge Rawlinson
“Villavicencio was not removable under 8 USC § 1227(a)(2)(B)(i). N.R.S. §§ 199.480 and 454.351 are both overbroad. N.R.S. § 199.480 criminalizes a broader range of conduct than is described in the generic definition of conspiracy, and N.R.S. § 454.351 encompasses a wider range of substances than those set forth in the federal Controlled Substances Act. Because neither statute is divisible, the modified categorical approach was unavailable to determine if Villavicencio was convicted of a removable offense. As a result, Villavicencio is entitled to his requested relief reversing the determination of removability.”
Admittedly, this is complicated stuff. But, the BIA is supposed to have “special expertise.”
Given the complexity of these determinations, how could an unrepresented immigrant ever hope to present a defense like this? (Look at the list of pro bono counsel who appeared for the respondent in this case!) How can Removal Hearings conducted where only the DHS is represented by counsel possibly comply with Due Process? (Particularly in light of the recent memo from the Chief Immigration Judge “reminding” Immigration Judges not to “act as counsel” for unrepresented respondents.) How can intentionally detaining immigrants and establishing so-called “courts” in detention centers in out-of-the-way locations where pro bono counsel are known to be generally unavailable possibly comply with Due Process? Why aren’t Immigration Judges and the BIA taking the time and doing the research to get cases like this right in the first place? How does Sessions’s exclusive emphasis on “peddling faster” and “churning out” more final removal orders effectively address the glaring systemic “quality control” problems exposed by cases like this?