Unpub. BIA Categorical Approach (Meth Isomers) Victory

Matter of X-, Nov. 22, 2023

"The Immigration Judge found the respondent was convicted of possession of a controlled substance for sale, to wit: methamphetamine, in violation of section 11378 of the California Health and Safety Code (IJ at 3-4, Mar. 2, 2023). ... The respondent filed a motion to reconsider the Immigration Judge’s decision, arguing that geometric isomers of methamphetamine can exist and presenting a declaration from an organic chemistry professor. DHS opposed the motion, arguing that the evidence presented by the respondent was contradicted by the expert testimony provided in Rodriguez-Gamboa. The Immigration Judge granted the respondent’s motion to reconsider and terminated her removal proceedings (IJ at 2-3, Mar. 15, 2023). ... Based on the evidence in the record, the Immigration Judge’s finding that geometric isomers can exist is not clearly erroneous (IJ at 3, Mar. 15, 2023). ... We agree with the Immigration Judge that the respondent’s conviction is not categorically an aggravated felony drug trafficking offense. DHS does not argue that California’s definition of methamphetamine is divisible with respect to geometric versus optical isomers. Therefore, DHS has not satisfied its burden of proving by clear and convincing evidence that the respondent has been convicted of an aggravated felony and is removable as charged. See 8 C.F.R. § 1240.8(a).
Accordingly, the following order will be entered. ORDER: DHS’ appeal is dismissed."

[Hats way off to Laura Shoaps!]