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Najera-Rodriguez v. Barr - 926 F.3d 343 (7th Cir. 2019)


A statute is clearly divisible if the statute itself identifies which things must be charged (and so are elements), or if its alternatives carry different punishments, which also means they must be elements. On the other hand, if a statutory list is drafted to offer illustrative examples, then it includes only a crime's means of commission and is not divisible.


Petitioner Julio Cesar Najera-Rodriguez was a lawful permanent resident of the United States. In 2016, an Illinois state court convicted him of unlawful possession of several Xanax pills without a prescription. Federal law provided in relevant part that any non-citizen, including a lawful permanent resident, was removable if he was convicted of a federal or state crime "relating to a controlled substance (as defined in section 802 of title 21)." In October 2017, the Department of Homeland Security began proceedings to remove Najera-Rodriguez under 8 U.S.C. § 1227(a)(2)(B)(i). Najera-Rodriguez argued before an immigration judge and the Board of Immigration Appeals that his conviction under § 402(c) did not qualify as a conviction under a law "relating to a controlled substance (as defined in section 802 of title 21).” Both the immigration judge and the Board ruled against him and ordered him removed from the United States.


Did petitioner’s conviction for Xanax possession make him removable from the United States?




According to the Court of Appeals for the Seventh Circuit, whether the Xanax possession conviction made Najera-Rodriguez removable depended on whether the Illinois criminal law under which he was convicted, 720 ILCS 570/402(c), was “divisible” for purposes of applying the “modified categorical approach” under the elaborate and sometimes technical body of law that has developed under federal recidivism statutes and their immigration law analogs. The Court found that the charging and sentencing documents in petitioner’s case simply did not show that the identity of the controlled substance was an element of the offense, which would be necessary to treat § 402(c) as divisible; hence, petitioner’s conviction did not render him removable.

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