Why did the Ninth Circuit remand Madrigal-Barcenas v. Lynch?

Sunday, August 16th, 2015
By: Jonathan MontagJ.D.

On August 10, 2015, the Ninth Circuit remanded Madrigal-Barcenas v. Lynch, which was at the Supreme Court along with Mellouli v. Lynch. Mellouli v. Lynch, is the Supreme Court case decided on June 1, 2015, that held that a Kansas conviction for possession of drug paraphernalia, in the Mellouli case, a sock in which Mr. Mellouli stored four Adderall pills, was not categorically a removable offense as a controlled substance violation, INA § 237(a)(2)(B)(I).  The Kansas statute,  Kan. Stat. Ann. §21–5709(b), proscribes “possess[ion] with intent to use any drug paraphernalia to,” among other things, “store” or “conceal” a “controlled substance.”

The Supreme Court remanded to the Ninth Circuit to deal with it in light of Mellouli. In Madrigal-Barcenas, Mr.  Madrigal-Barcenas was convicted under Section 453.566 of  the Nevada  Revised Statutes which states, “Any person who uses, or possesses with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of this chapter is guilty of a misdemeanor.” This had rendered Mr. Madrigal-Barcenas ineligible for Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b)(1). The Ninth Circuit remanded the case to the Board of Immigration Appeals which will in turn remand the case to the immigration court to “consider, in  the  first  instance,  the potential  application  of  the  modified  categorical  approach,  as well  as  the  merits  of  Petitioner’s  request  for  cancellation.”

In a nutshell, the issue in Mellouli and Madrigal-Barcenas was whether a statute is overbroad and what to do in such a case. The Immigration and Nationality Act lists scores of reasons a person can be removed from the United States. Many relate to criminal conduct. Many of those reference federal criminal statutes. Of course, persons convicted of state crimes are also removable for criminal convictions. The trick is to see if the state crime is a match for the federal one or a match for federally proscribed conduct. Testing for a match in state criminal elements to federal criminal elements or the elements of an offense that is removable conduct is called the Categorical Analysis or Taylor Analysis, named after the North Carolina law enforcement official, Andy Taylor, I mean based on a Supreme Court case, Taylor v. United States. When a state statute is overbroad, it usually implies that the state statute includes crimes that are analogous to federal crimes (or conduct) and crimes that are not.

The usual next step, the Modified Categorical Approach, tests whether the record of conviction contains information to determine what elements form the basis for the conviction. In the Mellouli and Madrigal-Barcenas cases, the statutes were considered overbroad because a person could be convicted of possessing paraphernalia for using or storing a drug that is not a federally controlled substance as there are some drugs that are illegal in a state but are not found on the federal drug schedules. The modified categorical test would look at the conviction record to see if a drug was named and whether that drug is a federally controlled substance. In Mellouli, apparently there was no need to remand for the modified categorical analysis because it was already implicitly accomplished as no controlled substance was named in the conviction documents. In  Madrigal-Barcenas, the case was remanded to conduct the modified categorical analysis. The Categorical and Modified Categorical approaches are not new concepts. I have written about them repeatedly over the years, including initially here.

While the categorical and modified categorical analyses have, as stated in Mellouli, a long pedigree in immigration law, there have been attempts to erode the strictness of the tests as they tend to exonerate people who obviously committed crimes that are removable offenses. The Supreme court, in its 2013 decisions in Descamps v. United States  and  Moncrieffe v. Holder  revalidated the categorical and modified analytical approaches. Moncrieffe explicitly underpins the Supreme Court’s holding in Mellouli.

Based on this analysis, the Ninth Circuit was justified in remanding Madrigal-Barcenas to consider the modified categorical analysis. However, there is another analytical step not mentioned in  Madrigal-Barcenas, a step discussed in the Ninth Circuit’s decision in Rendon v. Holder. The Ninth Circuit did not take this step.

Under a Rendon analysis, the issue is not the various types of conduct that can lead to a criminal conviction in a particular criminal statute, but what a judge or jury must find to lead to a conviction. In Rendon, the issue was whether a burglary under Cal. Penal Code § 459 was an aggravated felony. To be an aggravated felony, § 459 had to match the federal definition of a theft offense. The federal definition requires an unlawful entry into a car with the intent to steal the car. The crime under § 459 is entering a locked car to steal or commit a felony. A factfinder does not need to determine whether the defendant intended to steal something or commit some other felony to convict. As the Rendon court termed it, stealing or having some other felonious intent are not alternate elements of the crime (elements need to be found by the factfinder) but rather alternate means of committing the crime (means do not need to be specifically found by the factfinder).

Applying the Rendon analysis to the crime in Madrigal-Barcenas, Section 453.566 of  the Nevada  Revised Statutes, if a Nevada jury would not have to determine what drug the paraphernalia was for, then the issue of what drug the paraphernalia was for would be an alternative means of conviction and not alternative elements of conviction. A quick perusal of Nevada jury instructions should indicate whether a jury must find a specific drug relating to the paraphernalia making the drug an element of the crime, or whether no finding of a particular drug need be determined by a judge or jury, in which case the crime is not divisible, but rather simply has alternative means of commission. In such a case, the crime would not render one removable for a drug-related offense because a specific drug is not an element of the crime regardless of how obvious it is that a specific, perhaps federally illegal, drug was related to the paraphernalia. Had the  Madrigal-Barcenas court taken this step, it might well have found that the paraphernalia conviction was not a divisible offense and remand for the modified categorical approach unnecessary. If it found the statute was not divisible, remand would be warranted so Mr. Madrigal-Barcenas could pursue Cancellation of Removal, but not to determine whether his crime barred him from the relief.

It should be noted that under the California Criminal Jury Instructions,  to find a person guilty of possessing drug paraphernalia in California under Cal. Health and Safety Code § 11364(a), a jury must find merely:

1. The defendant [unlawfully] possessed an object used for unlawfully injecting or smoking a controlled substance;

2. The defendant knew of the object’s presence; and

3. The defendant knew it to be an object used for unlawfully injecting or smoking a controlled substance.

As no specific drug needed to be identified, the crime was not divisible and would not be a removable offense.

The Madrigal-Barcenas court should have conducted a Rendon analysis and completely resolved the issue of removability in the case. Posted August 16, 2015.


No Responses to “Why did the Ninth Circuit remand Madrigal-Barcenas v. Lynch?”

Comments are closed.