Camilo Andres Ramirez-Contreras v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-2639
___________________________
Camilo Andres Ramirez-Contreras
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: March 15, 2024
Filed: July 9, 2024
[Unpublished]
____________
Before COLLOTON, Chief Judge, ERICKSON and KOBES, Circuit Judges.
____________
PER CURIAM.
Camilo Andres Ramirez-Contreras is a lawful permanent resident who was
convicted of fifth-degree possession of a controlled substance under Minnesota law,
Minn. Stat. § 152.025, subd. 2(1). The Department of Homeland Security charged
him as removable because, as relevant here, he had been convicted of violating “any
law or regulation of a State . . . relating to a controlled substance (as defined in

-- 1 of 3 --

-2-
section 802 of title 21).” 8 U.S.C. § 1227(a)(2)(B)(i). The Board of Immigration
Appeals agreed. Ramirez petitions for review, arguing that his conviction under
Minnesota’s fifth-degree possession statute is not a controlled substance offense
under § 1227(a)(2)(B)(i).
We review de novo whether a state drug conviction triggers removal under
§ 1227(a)(2)(B)(i). Bannister v. Barr, 960 F.3d 492, 494 (8th Cir. 2020) (per
curiam). To determine whether it does, we generally apply the categorical approach.
See Martinez v. Sessions, 893 F.3d 1067, 1069 (8th Cir. 2018). That approach asks
us to decide whether the elements of the state offense fit within the removable
offense. Id. at 1069–70. Things get trickier if the state statute is divisible. If it is,
meaning that it “includes multiple, alternative elements that create several different
crimes,” we apply the modified categorical approach instead. Rendon v. Barr, 952
F.3d 963, 968 (8th Cir. 2020). Under that approach, we “determine, based on a
limited class of judicial records,” the crime of conviction and whether the elements
of that offense fit within the removable offense. Id. (citation omitted).
Minnesota’s fifth-degree possession statute is divisible because the identity of
the substance possessed is an element of the offense. Id. Applying the modified
categorical approach, we peek at Ramirez’s guilty plea petition and see that he
pleaded guilty to felony fifth-degree possession of a trace amount of heroin.
Fifth-degree possession of heroin under Minnesota law fits within any state
law “relating to a controlled substance (as defined in section 802 of title 21),”
§ 1227(a)(2)(B)(i). Under § 802(6), a “controlled substance” is a “drug or other
substance, or immediate precursor, included in schedule I, II, III, IV, or V.” Heroin
is a schedule I controlled substance, § 812(c), sched. I(b)(10), so Ramirez’s
conviction for possessing it is a removable offense. See Rendon, 952 F.3d at 969
(conviction for “fifth degree possession of a controlled substance, specifically
methamphetamine,” under Minn. Stat. § 152.025 is a removable offense because
“[m]ethamphetamine is a federally controlled substance”).

-- 2 of 3 --

-3-
Ramirez resists, misguidedly arguing that Minnesota’s fifth-degree
possession statute is broader than § 1227(a)(2)(B)(i) because the small quantity of
heroin he possessed is not punishable as a felony under federal law. But
§ 1227(a)(2)(B)(i) says nothing about the quantity of controlled substances
possessed1 or whether the state offense is a felony or misdemeanor. See Briscoe v.
Att’y Gen., 751 F. App’x 329, 331 (3d Cir. 2018) (per curiam) (rejecting petitioner’s
argument that he is not removable because the two grams of marijuana he possessed
with intent to distribute is not punishable under the Controlled Substances Act, given
that “whether such an offense is punishable under the CSA is not relevant” to
§ 1227(a)(2)(B)(i)); cf. Moncrieffe v. Holder, 569 U.S. 184, 204 (2013) (“Any
marijuana distribution offense, even a misdemeanor, will still render a noncitizen
deportable as a controlled substances offender.” (citing § 1227(a)(2)(B)(i))). Section
1227(a)(2)(B)(i) simply looks to whether the state offense relates to a controlled
substance under § 802, and here it does.
We deny the petition for review.
______________________________
1 To be sure, § 1227(a)(2)(B)(i) has a carve out for possession of small,
personal use quantities of marijuana. But that carve out does not extend to other
controlled substances. Id.

-- 3 of 3 --