David Swinton v. Adam J. Starke

United States Court of Appeals
For the Eighth Circuit
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No. 18-2638
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Elizabeth Rachael Bannister
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
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No. 18-2715
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Miguel Angel Fasio
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 16, 2019
Filed:May 26, 2020
[Published]
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Before COLLOTON, BEAM, and KELLY, Circuit Judges.
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PER CURIAM.
In these consolidated cases, Petitioners Elizabeth Bannister and Miguel Fasio
petition for review of decisions by the Board of Immigration Appeals (BIA) affirming
their orders of removal. Because Petitioners’ arguments are foreclosed by this court’s
precedent, we deny their petitions for review.
I.
Petitioners are lawful permanent residents who were convicted of fifth-degree
possession of a controlled substance in Minnesota state court. The charging
documents in their criminal cases alleged they had possessed methamphetamine.
Bannister pleaded guilty in two separate cases to violating Minn. Stat. § 152.025,
subd. 2(a)(1) (2015). Fasio pleaded guilty to violating Minn. Stat. § 152.025,
subd. 2(b)(1) (2015), which is similar to subdivision (a)(1), but provides heightened
penalties for a “subsequent controlled substance conviction.” See Minn. Stat.
§ 152.025, subd. 2(b)(1) (2015).
Following Petitioners’ convictions, the Department of Homeland Security
(DHS) initiated removal proceedings, charging them as removable under
§ 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA). That section
provides that a noncitizen is subject to removal if, “at any time after admission,” he
or she has been convicted of violating “any law or regulation of a State . . . relating
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to a controlled substance (as defined in section 802 of Title 21) . . . .” 8 U.S.C.
§ 1227(a)(2)(B)(I).
The same Immigration Judge (IJ) presided over both Petitioners’ removal
proceedings. The IJ determined that DHS had not met its burden to establish
Petitioners’ removability under INA § 237(a)(2)(B)(i) because Minnesota’s fifth-
degree possession statute is categorically overbroad and indivisible. The BIA
overturned the IJ’s decisions. It agreed that Minnesota’s fifth-degree possession
statute is overbroad because it criminalizes about 200 more substances than the
federal Controlled Substances Act. But the BIA decided the Minnesota statute is
divisible because the identity of the specific controlled substance is an element of the
offense. The BIA next determined that, under the modified categorical approach, the
conviction records in Petitioners’ cases established that they had possessed
methamphetamine, which is a federally controlled substance. The BIA remanded to
the IJ, who then found Petitioners removable as charged. The BIA affirmed, and
Petitioners timely sought review in this court. They argue that a violation of
Minnesota’s fifth-degree possession statute is not a removable offense.
II.
We have jurisdiction to review questions of law and constitutional claims
presented by noncitizens ordered removed from this country. Cherichel v. Holder,
591 F.3d 1002, 1009 (8th Cir. 2010). Whether a violation of a state statute qualifies
as a removable offense under INA § 237(a)(2)(B)(i) is a question of law we review
de novo. Rendon v. Barr, 952 F.3d 963, 967–68 (8th Cir. 2020). We employ the
categorical approach to determine whether a state conviction is a removable offense.
Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015). Because Petitioners are lawful
permanent residents, the government must show by clear and convincing evidence
that they are subject to removal. See 8 U.S.C. § 1229a(c)(3)(A).
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Petitioners argue the BIA wrongly decided they are removable for having
violated Minnesota’s fifth-degree possession statute. They contend the Minnesota
statute is both categorically overbroad—because it criminalizes more substances than
does the federal government—and indivisible—because the specific substance
possessed is not an element of the Minnesota offense. However, this court recently
decided that Minnesota’s fifth-degree possession statute is divisible because the
identity of the particular substance possessed is an element of the crime. See Rendon,
952 F.3d at 968.
Because the Minnesota fifth-degree possession statute is divisible, we apply
the modified categorical approach to “determine, based on a limited class of judicial
records,” the crime of which Petitioners were convicted and whether their “offense
of conviction fits within the removable offense.” Id. at 969 (cleaned up). Bannister
pleaded guilty in two separate state-court proceedings. Her plea petitions from both
cases show she pleaded guilty to the charge in the complaint: fifth degree possession
of a controlled substance, specifically methamphetamine. Likewise, Fasio’s plea
petition shows he pleaded guilty to the charge in the state-court complaint: fifth
degree possession of a controlled substance, specifically methamphetamine.
The government argues that because methamphetamine is a controlled
substance under federal law, Petitioners’ convictions qualify as removable offenses.
See 21 U.S.C. § 812(c), scheds. II(c), III(a)(3). Petitioners counter that even if
methamphetamine is an element of their crimes of conviction, they are not removable
because Minnesota’s definition of “methamphetamine” is categorically broader than
the federal definition of “methamphetamine.”
Petitioners failed to raise this overbreadth argument before the IJ or the BIA.
This court generally “will not consider an argument raised for the first time on
appeal.” Garcia-Moctezuma v. Sessions, 879 F.3d 863, 867 (8th Cir. 2018) (quoting
Hartman v. Workman, 476 F.3d 633, 635 (8th Cir. 2007)). “This principle applies to
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our review of agency decisions, as there is a basic principle of administrative law that
ordinarily an appellate court does not give consideration to issues not raised below.”
Id. at 867–68 (cleaned up). It is “particularly appropriate” to enforce the waiver in
these cases because “the administrative proceedings before both the Immigration
Court and the BIA were adversarial,” and both Petitioners were represented by
counsel. See id. at 868 (cleaned up). Accordingly, we decline to consider the
argument that Petitioners raise for the first time with this court.
Petitioners are removable because they pleaded guilty to possessing
methamphetamine in violation of Minnesota’s fifth-degree possession statute. See
Rendon, 952 F.3d at 969. We therefore deny their petitions for review.
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