and Submitted November 8, 2016 Portland, Oregon
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A090-808-120
Patrick Conry (argued), Portland, Oregon, for Petitioner.
E. Park (argued), Senior Litigation Counsel; Cindy S.
Ferrier, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
Before: M. Margaret McKeown, William A. Fletcher and Raymond
C. Fisher, Circuit Judges.
panel granted Leonel Sandoval's petition for review of
the Board of Immigration Appeals' decision finding him
ineligible for cancellation of removal based on his
conviction for delivery of a controlled substance under
Oregon Revised Statutes § 475.992(1)(a), and remanded.
panel held that the Oregon law is not a categorical
aggravated felony, because its definition of
"delivery" includes mere solicitation, and the
federal Controlled Substances Act does not punish soliciting
delivery of controlled substances. The panel further held
that because no "commercial element" is included in
the Oregon statute, it is not a categorical match to an
"illicit trafficking" offense.
panel also held that the modified categorical approach does
not apply because the Oregon law is indivisible with respect
to whether an "attempt" is accomplished by
FISHER, Circuit Judge.
was convicted of delivery of a controlled substance under
Oregon Revised Statutes § 475.992(1)(a).Oregon law permits
conviction for delivery under this statute based on mere
solicitation. Because the Controlled Substances Act does not
punish soliciting delivery of controlled substances, §
475.992(1)(a) cannot be a categorical match to an aggravated
felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Further,
because § 475.992(1)(a) is indivisible, the modified
categorical approach does not apply. Therefore, we grant
Sandoval's petition and remand for further proceedings.
Sandoval moved to the United States from Mexico when he was
nine years old. He adjusted to lawful permanent resident
status in 1990. His wife of over 26 years and two children
are United States citizens.
1998, Sandoval was convicted of delivery of a controlled
substance under Oregon law. The indictment identified the
controlled substance as heroin. He performed community
service at a forest project and was placed on probation for
two years. Since then, he has not been convicted of any other
criminal activity. Twelve years later, the government
instituted removal proceedings against him. It alleged two
grounds for removal based on Sandoval's 1998 conviction:
(1) that the conviction was an aggravated felony and (2) that
the conviction was related to a controlled substance.
See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i).
Under the second charge, Sandoval could seek cancellation of
removal based on his long-standing residence and family ties
in the United States. But the first charge made him
ineligible for such relief. See id. §
1229b(a)(3). Accordingly, Sandoval argued the government had
failed to offer clear and convincing evidence he was
convicted of an aggravated felony because Oregon's
statute is broader than a federal controlled substance
offense given that it punishes solicitation in addition to
actual and attempted delivery. The IJ and BIA rejected this
argument, concluded he was ineligible for cancellation of
removal and ordered him removed.
timely petitioned for review. We have jurisdiction and review
Sandoval's petition de novo. See 8 U.S.C. §
1252(a)(2)(D); Daas v. Holder, 620 F.3d 1050, 1053
(9th Cir. 2010); see also Coronado-Durazo v. INS,
123 F.3d 1322, 1324 (9th Cir. 1997). We do not defer to an
agency's interpretations of state law or provisions of
the federal criminal code. See Hoang v. Holder, 641
F.3d 1157, 1161 (9th Cir. 2011).
determine whether a state criminal conviction is an
aggravated felony, we must follow the "categorical
approach." See Descamps v. United States, 133
S.Ct. 2276, 2281 (2013). Under this approach, we
"compare the elements of the statute forming the basis
of the [petitioner's] conviction with the elements of the
'generic' crime - i.e., the offense as
commonly understood." Id. Only if the elements
in the petitioner's statute of conviction "are the
same as, or ...