Immigration Law

Matter of Gonzalez Lemus, 27 I&A Dec. 612 (BIA 2019)

Matter of Gonzalez Lemus, 27 I&A Dec. 612 (BIA 2019)  Interim Decision #3961, Sept. 25, 2019

(1) Because the identity of the drug involved is an element of the crime of possession of a controlled substance under section 124.401(5) of the Iowa Code, the statute is divisible (in the case of marijuana, methamphetamine, or amphetamine) as to the specific drug involved, and the record of conviction can be examined under the modified categorical approach to determine whether that drug is a controlled substance under Federal law.

(2) The respondent’s conviction for possession of methamphetamine in violation of section 124.401(5) of the Iowa Code is a violation of a law relating to a controlled substance under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012).

"[W]e agree with the Immigration Judge that section 124.401(5) of the Iowa Code is divisible (in the case of marijuana, methamphetamine, or amphetamine) as to the specific drug involved, and we uphold his application of the modified categorical approach to determine that the drug was methamphetamine, which is a controlled substance under Federal law. Therefore, we conclude that the respondent is removable under section 237(a)(2)(B)(i) of the Act as an alien who was convicted of a controlled substance violation. Accordingly, the respondent’s appeal will be dismissed."