                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           MAY 11 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
GUILLERMO VERA-VALDEVINOS,                       No. 14-73861
AKA Guillermo Vera-Valdovinos,
                                                 Agency No. A078-021-885
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted April 15, 2016
                            San Francisco, California

Before: NOONAN, BEA, and CHRISTEN, Circuit Judges.

      Guillermo Vera-Valdevinos, a lawful permanent resident, appeals from the

Board of Immigration Appeals (“BIA”)’s dismissal of his appeal of an immigration

judge’s decision finding him removable under section 237(a)(2)(B)(i) of the

Immigration and Nationality Act (“INA”) for a controlled substance violation and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
denying cancellation of removal under INA § 240A(a). We review constitutional

claims and legal questions de novo. We grant the petition to review.

      First, this Court considers whether Vera-Valdevinos is removable. Vera-

Valdevinos was convicted of violating Ariz. Rev. Stat. § 13-3408, which prohibits

the possession, selling, manufacturing, administering, procuring, transporting,

importing, and offering to transport a “narcotic drug.” Ariz. Rev. Stat. § 13-

3408(1)-(7). Under INA § 237(a)(2)(B)(i), an alien is deportable if he is

“convicted” of a violation “relating to a controlled substance (as defined in section

802 of Title 21).” At oral argument, the government conceded that Ariz. Rev. Stat.

§ 13-3408 is overbroad because Arizona prohibits criminal possession of two

substances, Benzylfentanyl and Thenylfentanyl, which are not on the Federal

Controlled Substance Schedule. Compare Ariz. Rev. Stat. § 13-3401(20)(n),

(cccc), with 21 U.S.C. § 802. Accordingly, for the purpose of this disposition, this




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Court finds that under the categorical approach,1 Ariz. Rev. Stat. § 13-3408 is not a

ground for deportation.

      Second, this Court considers whether a conviction under Ariz. Rev. Stat. §

13-3408(A)(7) is an aggravated felony under INA § 101(a)(43)(B) (“illicit

trafficking in a controlled substance (as defined in section 802 of Title 21”) when

examined under the categorical method. Because this Court finds that Ariz. Rev.

Stat. § 13-3408 is overbroad due to Arizona’s regulation of two substances not on

the Federal Controlled Substance Schedule, by definition a conviction under Ariz.

Rev. Stat. § 13-3408(A)(7) cannot be for illicit trafficking in a federally controlled

substance.

      The government requests that this case be remanded so that the BIA may

reassess Vera-Valdevinos’s removability and relief from removal. According to




      1
        Ariz. Rev. Stat. § 13-3408 is indivisible. “[A] statute is indivisible if the
jury may disagree on the fact at issue yet still convict.” Lopez-Valencia v. Lynch,
798 F.3d 863, 869 (9th Cir. 2015) (internal quotation marks omitted). Arizona’s
jury instructions do not require the jury to make a finding of fact regarding the
specific substance at issue. See Rev. Ariz. Jury Instructions (Criminal), 34.0871
(3d ed.) (“The crime of [transporting narcotic drugs for sale] [importing narcotic
drugs into this state] [selling narcotic drugs] [transferring narcotic drugs] requires
proof of the following: 1. The defendant knowingly [transported a narcotic drug for
sale] [imported a narcotic drug into this state] [sold a narcotic drug] [transferred a
narcotic drug]; and 2. The substance was in fact a narcotic drug.”).

                                           3
the government, the agency failed to apply the categorical and modified categorical

approaches when determining removability.

      A court of appeals generally should remand a case to an agency for decision

of a matter placed primarily in agency hands by statute. I.N.S. v. Orlando Ventura,

537 U.S. 12, 16 (2002). This Court, however, generally does not remand to the

BIA to apply the categorical or modified categorical approach where: (1) “only

legal questions remain and these questions do not invoke the Board’s expertise;”

(2) “all relevant evidence regarding the conviction had been presented to the BIA

in earlier proceedings;” and (3) “the BIA had already once determined that the

offense fell within the generic definition of the crime, even if only at the

categorical stage.” Flores-Lopez v. Holder, 685 F.3d 857, 865 (9th Cir. 2012)

(internal quotation marks omitted); Fregozo v. Holder, 576 F.3d 1030, 1039 (9th

Cir. 2009). All three factors are present here, which makes remand unnecessary.

      The government’s motion to remand is denied.

      PETITION FOR REVIEW GRANTED.




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