                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                        September 27, 2016
                       _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ZU-CHEN HORNG,

      Petitioner,

v.                                                         No. 15-9579
                                                       (Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,

      Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges.
                 _________________________________

      Zu-Chen Horng, a citizen of Taiwan, seeks review of the Board of Immigration

Appeals’ order affirming the Immigration Judge’s order finding him ineligible for

adjustment of status or a waiver of inadmissibility. We have jurisdiction under

8 U.S.C. § 1252 and remand to the BIA for further proceedings.

      Horng was admitted to the United States in 1981 on a temporary tourist visa

but stayed beyond the authorized period. He was convicted in Utah state court of


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
shoplifting in 1990, theft in 1992, battery in 1993, and felony possession of a

controlled substance under Utah Code Ann. § 58-37-8(2) in 1994. He was charged in

2012 with being removable as an alien convicted of two crimes involving moral

turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii), based on his shoplifting and theft

convictions, and he conceded removability.

      Horng then applied for adjustment of status to become a permanent resident

under 8 U.S.C. § 1255(i). But his controlled-substance conviction rendered him

potentially ineligible under 8 U.S.C. § 1182(a)(2)(A)(i)(II), which states that an alien

is inadmissible, and thus ineligible for adjustment under §1255(i), if he’s been

convicted of a “controlled substance” offense, as that term is defined in 21 U.S.C.

§ 802. Horng sought a waiver of inadmissibility under 8 U.S.C. § 1182(h), which

permits a waiver if the controlled-substance conviction was for “a single offense of

simple possession of 30 grams or less of marijuana.” § 1182(h). But the record of

Horng’s controlled-substance conviction doesn’t identify the controlled substance he

was convicted of possessing.

      Courts generally employ a “categorical” approach to determine if a state

controlled-substance conviction qualifies as an offense under § 802 for immigration

purposes. See Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015). Under that approach,

we determine if the state controlled substance statute categorically fits § 802. See id.

at 1990-91. The IJ determined, and the government concedes, that a violation of

Utah § 58-37-8(2) is not categorically a controlled-substance offense under



                                           2
§ 1182(a)(2)(A)(i)(II) because Utah’s list of controlled substances includes

substances not listed in § 802.

       Courts may use a “variant” of the categorical approach, called a “modified

categorical approach,” if the statute of conviction is “divisible”; that is, if it “sets out

one or more elements of the offense in the alternative.” Descamps v. United States,

133 S. Ct. 2276, 2281 (2013). Under this approach, we may look to certain

documents to determine which alternative formed the basis of the prior conviction.

Id. But if a statute isn’t a categorical match, and it isn’t divisible, it can’t be used as

the underlying predicate or disqualifying offense. Id. at 2285-86 (holding that an

indivisible, overbroad statute can’t serve as the basis for a predicate offense).

       Utah § 58-37-8(2)(a)(1) makes it unlawful to “knowingly and intentionally . . .

possess or use a controlled substance,” referencing a list of controlled substances

written in the disjunctive in § 58-37-8(2)(b). Utah Code Ann. § 58-37-8(2) (1994).

The IJ determined that § 58-37-8(2) was divisible and thus applied the modified

categorical approach, ultimately concluding from his review of the underlying

documents that Horng failed to show his eligibility for adjustment of status or a

waiver of inadmissibility.

       Horng appealed to the BIA, arguing the Utah statute was overbroad and

indivisible. During the pendency of his BIA appeal, we decided United States v.

Trent, 767 F.3d 1046 (10th Cir. 2014), holding that a statute is divisible if it sets out

alternative ways of committing the crime, even if those means weren’t alternative



                                             3
“elements in the traditional sense.” Id. at 1060-61. Based on Trent, the BIA agreed

that § 58-37-8(2) was a divisible statute and affirmed.

       Horng seeks review, arguing § 58-37-8(2) is not a “divisible” statute because it

criminalizes only the use of a controlled substance; he contends the identity of the

controlled substance isn’t an element of the crime. And since it’s undisputed the

Utah statute is overbroad—that is, it criminalizes possession of substances that aren’t

controlled substances in § 802—Horng contends the Utah conviction can’t be used to

determine he is ineligible for adjustment of status based on a controlled substance

conviction.

       We generally lack jurisdiction to review the discretionary denial of relief

under § 1255(i) and § 1182(h), see § 1252(a)(2)(B)(i), but here we have jurisdiction

because Horng raises purely legal issues. See § 1252(a)(2)(D) (permitting court to

review constitutional claims and questions of law).

       While Horng’s petition for review was pending in this court, the Supreme

Court decided Mathis v. United States, 136 S. Ct. 2243 (2016), overruling Trent and

holding that the modified categorical approach can be used only when a statute lists

alternative elements of the crime; with “elements” strictly defined as the “constituent

parts of a crime’s legal definition” that must be proved beyond a reasonable doubt or

that a defendant must necessarily admit to plead guilty. Id. at 2248, 2253 (internal

quotation marks omitted). Mathis rejected Trent’s conclusion that a statute could be

considered divisible if it lists alternative means of satisfying its elements, id. at 2248,

2253, and made clear that the modified categorical approach can’t be used “as a

                                             4
technique for discovering whether a defendant’s prior conviction, even though for a

too-broad crime, rested on facts. . . that also could have satisfied the [relevant]

elements” of the predicate or disqualifying offense, id. at 2254.

      The BIA’s determination that § 58-37-8(2) is divisible relied upon Trent’s

now-overruled holding that a statute is divisible if it uses alternative statutory

phrases. Neither the IJ nor the BIA determined whether Utah treats the identity of

the specific controlled substance as an element of the § 58-37-8(2) crime that must be

proven beyond a reasonable doubt. In light of Mathis, the BIA’s divisibility analysis

is no longer valid. Accordingly, we vacate the BIA’s decision and remand this

matter to the BIA for further consideration in light of Mathis.1


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




      1
         Horng also argues in his petition for review that Descamps’ categorical
analysis is a legal determination not subject to his burden of proving he is eligible for
discretionary relief. On remand, resolution of whether § 58-37-8(2) is a divisible
statute may obviate the need to address this burden-of-proof argument.
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