This decision is wrong. The 9th Cir held in Alvarado that ARS 13-3407 is overbroad - it covers more substances than the federal controlled substance list. Remaining question is whether the statute is divisible. It's not. https://twitter.com/DOJ_EOIR/status/1286345448068915201

The substance is a means of committing the crime, not an element. That was why the AZ Ct of App upheld the conviction in State v. Prescott (2016 WL 611656). The charging document listed the subst as MDMA but it turned out to be meth.

The court said it didn't matter because the substance wasn't an element. As long as the jury found at least one banned substance was at issue, they didn't have to find bard which one it was. Same happened in State v. Castorina.

In a footnote the BIA gets around this by citing an AZ Dist Ct. case with almost not analysis. This is a fun trick - when District Court decisions aren’t in the Board’s favor, they claim under Matter of Anselmo that they’re not bound by them and don't have to follow them...

The Dist. Ct. case is US v. Sanchez-Murillo. There the court admits that an Arizona jury is not required to find which specific susbtance was possessed/sold. But says in essence “nbd, let’s do modified approach anyway” 2019 WL 3858606

There's no other analysis in Sanchez-Murillo about why the substance is an element if the jury didn't have to find which substance. Here's what the Prescott court said:

More from Prescott. If you're following along at home, the theme seems to be that when it harms the immigrant/defendant (as in Prescott), these rules are applied strictly. When it might help the immigrant (as here), then loosey goosey it is.

Next the Board relies on the 9th Circuit's decision in Martinez-Lopez, but that too is pretty easily distinguishable. First, That decision was based on a CA statute where the "jury instructions require a jury to fill in a blank identifying ‘a controlled substance’—i.e., only one

—demonstrating that the jury must identify and unanimously agree on a particular controlled substance.” Remember, Arizona doesn't require the jury to identify the substance. Pretty big difference. Then there's the sneaky little footnote...

In a footnote the Board acknowledges the 9th Circuit has more-recently said the opposite...

A few more things - Prescott is the case the BIA mentions, but there are more. There's State v. Lodge, 2015 WL 164070, upholding a 13-3415(A) conviction despite the fact that the jury instructions did not require a connection between the paraphernalia and a specific drug.

There's also Vera-Valdevinos v. Lynch, 649 F. App'x 597, 598 & n.1 (9th Cir. 2016), which the Board doesn't mention, holding 13-3408 is indivisible vis-à-vis section because an Arizona jury need not decide the identity of the particular drug at issue.

One would hope this case would wind up at the 9th Circuit. But they picked a pro se appeal to publish their decision on this issue (after a series of unpublished decisions - where attorneys were involved - went the other way). I wish I thought that were a coincidence.

I mean, the decision's author recently issued a concurrence on the SAME ISSUE going the other direction. There the Board found the statute divisible but only wrt meth - because of the possible sentence enhancement in AZ for meth. The opening line is striking.

in that case, the Board said "your docs say meth but you didn't get the sentence enhancement, so we can't conduct a further modified approach" and terminated proceedings. O'Connor agrees that's what the law requires but repeatedly calls it an "absurd result."

Let's compare to Matter of P-B-B-. Any mention of the Arizona sentence enhancement for meth? Nope. They conclude the whole statute is divisible.

This is the last paragraph from that concurrence. This is a plea for results-driven adjudication.