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Seventh Circuit: Indiana Statute on Dealing Methamphetamine Facially Overbroad and Does Not Qualify as Aggravated Felony for Immigration Purposes

by Jacob Barrett

The U.S. Court of Appeals for the Seventh Circuit reversed a decision by the Board of Immigration Appeals (“BIA”) to remove Jonathan Aguirre-Zuniga for a conviction for dealing methamphetamine under Indiana code § 35-48-4-1.1, holding it did not qualify as an aggravated felony for the purpose of removal under the Immigration and Naturalization Act (“INA”) because the state statute was overbroad, i.e., criminalizes more conduct than the corresponding federal law.

Aguirre-Zuniga was brought to the U.S. from Mexico by his immigrant parents when he was three years old. He lived in Indiana from the age of eight, where he now resides with his six-year-old daughter who is an American citizen. Fifteen years ago, he became a lawful permanent resident.

In 2018, Aguirre-Zuniga pleaded guilty to one count of dealing methamphetamine under Indiana code § 35-48-4-1.1 (“Indiana Statute”). The Department of Homeland Security (“DOH”), a year later, sought to remove Aguirre-Zuniga back to Mexico. The DOH argued that Aguirre-Zuniga was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) of the INA.

Aguirre-Zuniga filed a motion to terminate the proceedings, arguing the conviction does not qualify as an aggravated felony for federal removal purposes because the Indiana Statute is overbroad in that “it criminalized optical, positional, and geometric isomers of methamphetamine, while the corresponding federal offense criminalized only optical isomers.”

The Immigration Judge (“IJ”) denied his motion, and Aguirre-Zuniga filed for reconsideration, which was also denied. The IJ agreed that the Indian statute was overbroad, but Aguirre-Zuniga could be removed nonetheless because “he had not demonstrated under the ‘realistic probability’ test that the state had ever prosecuted a case based on positional isomers of methamphetamine.”

The BIA affirmed the IJ’s decision and provided its own analysis, reasoning that “because Aguirre-Zuniga did not show that ‘the State court actually applied the statute to an offense involving a substance that is not federally controlled,’ his conviction count[ed] as an aggravated felony for the purpose of removal.”

Aguirre-Zuniga appealed to the Seventh Circuit, again arguing that the Indiana Statute is overbroad. Because the BIA upheld the IJ’s decision and provided its own analysis, the Court reviewed both decisions.

The Court began its review by reiterating that under § 1227(a)(2)(A)(iii), the DOH has the authority to remove noncitizens who, for among other reasons, have committed an “aggravated felony at any time after admission” to the U.S.

Citing Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), the Court noted that when reviewing the DOH’s decision to seek removal of a noncitizen, courts “employ a categorical approach by looking to the statute … of conviction, rather than to the specific facts underlying the crime.” Under categorical approach, the Court stated that “courts determine the minimal conduct criminalized by the state statute at the time of conviction by comparing the elements of the state statute with that of the federal analog.” Shular v. United States, 140 S. Ct. 779 (2020). If the state statute is broader than the federal statute on its face, then it does not qualify as an aggravating conviction. United States v. De La Torre, 940 F.3d 938 (7th Cir. 2019).

The Court noted that the U.S. Supreme Court has further divided the categorical approach into two methodologies, which the Court refers to as the “generic-offense” method and the “conduct based” method. United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) (citing Shular). The generic-offense method applies “to statutes invoking common crimes, like burglary, and requires courts ‘to come up with a ‘generic’ version of the crime” of which the elements of the offense are commonly understood. Id. The conduct-based method “applies to statutes ‘that do not reference a certain offense, but rather ‘some other criterion’ as the measure for prior convictions.” Id. The Court provided the following example: “where a noncitizen is subject to removal for prior convictions involving fraud or deceit, courts “look[] to whether the prior offense’s elements ‘necessarily entail fraudulent or deceitful conduct’ as the appropriate measure.” Id. 

The Court next explained that if, and only if, the plain language of the state statute is “ambiguous or has indeterminate reach,” then the reviewing court must turn to the “realistic probability” test, in which the petitioner “‘must at least point to [their] own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which [they] argue[].’” Hylton v. Sessions, 897 F.3d 57 (2d Cir. 2018); Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).

The Court noted that in the agency proceedings below, the Government argued that even when a state statute is overbroad on its face under the categorial approach, noncitizens still bear the burden of satisfying the realistic probability test. On appeal, the Court stated that the Government “wisely concedes that courts first apply the categorial approach and look to realistic probability only if the statute is ambiguous.” In order to eliminate any doubt or ambiguity on this issue, the Court declared that it reaffirms its statement in Ruth: “If the statute is overbroad on its face under the categorical approach, the inquiry ends.” The Court further stated that after applying the categorical approach, “if the court determines that the statute is ambiguous or has indeterminate reach, only then will the court turn to the realistic probability test.” See Gonzalez v. Wilkinson, 990 F.3d 654 (8th Cir. 2021).

The Court then applied the foregoing principles to the Indiana Statute. Under 8 U.S.C. § 110l(a)(43)(B) of the INA, an aggravated felony includes “illicit trafficking in a controlled substance (as defined in section 802 of Title 21).” It explained that this “immigration statute reaches felony convictions under the federal Controlled Substances Act or a state statute ‘only if it proscribes conduct punishable as a felony under federal law.’” Moncrieffe v. Holder, 569 U.S. 184 (2013). Consequently, the Court stated that the conduct-based method of the categorial approach applies in order to determine whether the Indiana Statute covers substances not prohibited under federal law. See Ruth.

Federal law classifies methamphetamine as a Schedule II or III controlled substance that includes “its salts, isomers, and salt of isomers.” 21 U.S.C. §§ 802(6), 812, Schedule II(c), Schedule III(a)(3). “Isomer” of methamphetamine under federal law refers only to “the optical isomer.” § 802(14).

In contrast, the Indiana Statute states that a person commits a felon when they “knowingly or intentionally deliver[] … methamphetamine, pure or adulterated.” Ind. Code § 35-48-4-1.1(a)(1)(A). Schedule II of the Indiana Code criminalizes “[m]ethamphetamine, including slats, isomers, and salts of its isomers.” § 35-48-2-6(d)(2). The Court noted that at the time of Aguirre-Zuniga’s conviction, the state legislature didn’t define “isomer.” Accordingly, the Court stated that the sole question is whether the definition of “methamphetamine” was broader under the Indiana Statute than federal law at the time of his conviction.

Employing rules of statutory construction in a lengthy analysis of the history and text of the Indiana Statute and associated statutes, the Court concluded that the Indiana Statute covered positional and optical isomers at the time of Aguirre-Zuniga’s conviction, which is broader than the federal definition of isomer because it includes only optical isomers. Therefore, the Court ruled that the Indiana Statute was facially overbroad at the time of his conviction and thus doesn’t qualify as an aggravated felony under the INA.

Accordingly, the Court granted Aguirre-Zuniga’s petition, vacated the BIA’s decision, and remanded the matter to the BIA for further proceedings consistent with the Court’s opinion. See: Aguirre-Zuniga v. Garland, 37 F.4th 446 (7th Cir.  2022). 

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