Considering When a Drug Possession Statute is Divisible (Matter of Gonzalez Lemus)


Introduction: Matter of Gonzalez Lemus, 27 I&N Dec. 612 (BIA 2019)

On September 25, 2019, the Board of Immigration Appeals (BIA) published a precedent decision in the Matter of Gonzalez Lemus, 27 I&N Dec. 612 (BIA 2019) [PDF version]. The Board concluded that an Iowa statute criminalizing possession of a controlled substance was divisible with respect to the substance being possessed, and the Board thus looked for evidence in the record regarding the alien's underlying criminal conduct to determine whether he had possessed a federally controlled substance, which would trigger deportability under the Immigration and Nationality Act (INA). Applying this “modified categorical approach,” the Board concluded that the alien had been convicted of possessing methamphetamine and was thus deportable under section 237(a)(2)(B)(i) of the INA.

We will review the factual and procedural history of Matter of Gonzalez Lemus, the Board's analysis and conclusions, and what the decision may mean for aliens convicted of State controlled substance offenses going forward.

Factual and Procedural History: 27 I&N Dec. at 612-13

The respondent, a native and citizen of Mexico, adjusted to lawful permanent resident status on April 29, 2009. On May 16, 2016, and June 24, 2016, the respondent was twice convicted for possession of a controlled substance in violation of section 124.401(5) of the Iowa Code. The first conviction pertained to his possession of methamphetamine, and the second conviction pertained to his possession of marijuana.

The Department of Homeland Security (DHS) charged the respondent as removable under sections 237(a)(2)(B)(i) and (ii) of the INA. Section 237(b)(2)(B)(i) provides that an alien is removable if he or she violates “any law or regulation of a State … relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).” The Immigration Judge presiding over the respondent's removal proceedings found him removable under section 237(b)(2)(B)(i). The Immigration Judge did not address the additional charge that the respondent was removable under section 237(b)(2)(B)(ii) as an alien who was found to be a drug abuser or addict. Thus, the Board would, on appeal, review only whether one of the respondent's convictions was a controlled substance offense under section 237(b)(2)(B)(i).

Finding that Statute of Conviction Is Divisible: 27 I&N Dec. at 613-16

The question before the Board was whether the respondent's statute of conviction categorically defined a controlled substance offense under the INA — that is, whether the jury was required to find that the respondent's offense involved a federally controlled substance. The Supreme Court of the United States has explained that this means that “the Government must connect some element of the alien's conviction to a drug 'defined in [the Controlled Substances Act].'” Mellouli v. Lynch, 135 S.Ct. 1980, 1991 (2015) [PDF version] [see article]. This approach relies solely on the language of the statute of conviction and does not allow for further inquiry into the alien's underlying conduct. If the statute of conviction does not define a single offense, but distinct offenses with alternative elements, adjudicators may instead apply the modified categorical approach. The Supreme Court explained that this approach is designed to determine “what crime, with what elements, [the respondent] was convicted of.” Mathis v. United States, 136 S.Ct. 2243, 2249 (2016) [PDF version] [see article]. In such a case, the adjudicator may conduct an inquiry into the record of conviction for the sole purpose of determining which crime the respondent was convicted of.

The Board excerpted the pertinent parts of the respondent's statute of conviction, section 124.401(5) of the Iowa Code:

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a serious misdemeanor for a first offense….

If the controlled substance is marijuana, the punishment shall be by imprisonment in the county jail for not more than six months or by a fine of not more than one thousand dollars, or by both such fine and imprisonment for a first offense….

If the controlled substance is amphetamine, its salts, isomers, or salts of its isomers, or methamphetamine, its salts, isomers, or salts of its isomers, the court shall order the person to serve a term of imprisonment of not less than forty-eight hours.
(Emphasises added by the Board.)

Is the foregoing statute divisible? The Board concluded that it is for several reasons. The Board began by noting that “the statute prescribes distinct punishments for drug possession offenses, depending on the identity of the specific controlled substance involved…” The above excerpts show, for example, that the statute prescribes different penalties for possession of marijuana, methamphetamine, amphetamine, or other controlled substances. The United States Court of Appeals for the Eighth Circuit, in whose jurisdiction the instant case arose [see article], stated in a precedent opinion that “different penalties for different statutory alternatives are an indication that the alternatives are elements.” Martinez v. Sessions, 893 F.3d 1067, 1071 (8th Cir. 2017) [PDF version]. In that case, the Eighth Circuit “examined the statutory text, the relevant jury instructions, and State court decisions” to find that the statute at issue was divisible, before applying the modified categorical approach.

The question of the statute's divisibility was dispositive to whether the respondent was removable. This is because “the State controlled substance statute at issue encompasse[s] drugs that are not listed in the Federal schedules.” Thus, were the statute to be read as defining a single offense for possession of any controlled substance under Iowa law, it would be overbroad with respect to the INA. But if the statute were to be read as defining specific offenses for possession of certain controlled substances, the question would be whether those substances were also controlled substances under Federal law, thus triggering removability under the INA.

In the instant case, the respondent argued that even if the statute of conviction were divisible, it was divisible only with respect to the question of whether the controlled substance being possessed was marijuana. The Board, however, found this argument to be unavailing because the statute also makes specific references to methamphetamine and amphetamine.

The Board found that Iowa State court decisions also cut against the respondent's position. “In State v. Birkestrand, 239 N.W.2d 353, 364 (Iowa 1976), the Supreme Court of Iowa rejected the defendant's claim that he was subjected to double punishment because the charges against him-possession of marijuana with intent to deliver and possession of LSD with intent to deliver (which was reduced to simple possession)-both arose out of the same factual situation.” That is, even though the defendant possessed both substances at the same time, the offense of possession of marijuana was separate and distinct from the offense of possession of LSD. Possession of LSD was not encompassed by the offense of possession of marijuana. The Board noted subsequent Iowa appellate court decisions applying the same rule to possession statutes.

The respondent argued that the Iowa Model Criminal Jury Instruction suggested that the State was not required at trial to prove the specific identity of the controlled substance the defendant possessed, only that the defendant possessed a controlled substance. Relying again on Iowa appellate court decisions, the Board rejected this argument — finding that courts have in fact uniformly considered proof of the identity of the controlled substance to be an element of the offense, and have treated possession of distinct controlled substances as distinct offenses. The Board also noted that several recent Iowa appellate court decisions relating to delivery of a controlled substance offenses have made clear that the State would have to prove that that the defendant knew the identity of the controlled substance.

For the foregoing reasons, the Board concluded that the identity of the controlled substance is an element of the crime under section 124.401(5).

The respondent also argued that the controlled substance was not an element of the offense because the Immigration Judge was unable to determine the specific controlled substance involved in his June 24, 2016, conviction. The Board, again, was unpersuaded. It noted that only limited documents regarding the respondent's conviction were introduced in his removal proceeding. Nevertheless, the Board's conclusion that the identity of the substance is an element of section 124.401(5) was unaltered. The Immigration Judge found, based on the evidence in the record, that the respondent's May 16, 2016, conviction involved methamphetamine. Because the respondent's conviction involved methamphetamine, the Board concluded that the Immigration Judge correctly determined that the respondent was removable.

Removable Notwithstanding Seeking Post-Conviction Relief: 27 I&N Dec. at 616

The respondent stated that he was seeking post-conviction relief in Iowa state court based on the claim that he had not been properly advised of the immigration consequences of his guilty plea. Because the respondent did not indicate that he had been granted any such relief, the Board concluded that he remained convicted for purposes of the immigration law, and is thus removable from the United States.


The issue before the Board was whether the respondent's statute of conviction's specification of certain controlled substances along with the distinct sentencing penalties for those substances made the statute divisible. Finding that the statute was divisible, the Board found that the Immigration Judge correctly looked to the state court record to determine which part of the statute the respondent had been found to have violated. In this case, the finding that the statute was divisible was decisive to the outcome of the case, since Iowa's controlled substance schedules are overbroad with respect to the Federal schedules.

The case highlights that determining whether a specific drug-related criminal provision will cause deportability depends on various factors, including the language of the relevant State statutes and how they have been interpreted by State courts. It is for this reason that any alien facing drug charges, or who has been convicted of a drug offense, should seek expert immigration counsel.