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

                          FOR THE TENTH CIRCUIT                  June 25, 2015

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
JUAN MANUEL TORRES-
LEDESMA,

            Petitioner,
                                              Nos. 14-9562 & 14-9603
v.                                             (Petitions for Review)

LORETTA E. LYNCH,
United States Attorney General, *

            Respondent.


                          ORDER AND JUDGMENT * *


Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.


      Mr. Juan Manuel Torres-Ledesma was convicted in state court of

maintaining a dwelling where a controlled dangerous substance is kept. See

Okla. Stat. Ann. tit. 63, § 2-404. Based on this conviction, the Board of

Immigration Appeals determined that Mr. Torres-Ledesma was removable


*
      The Court substitutes Ms. Loretta E. Lynch as the respondent. See
Fed. R. App. P. 43(c)(2).
**
      The Court has determined that oral argument would not materially
aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
R. 34.1(G). Thus, we have decided the appeal based on the briefs.
     Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
because the conviction involved an aggravated felony and a violation of

state law relating to a controlled substance. See 8 U.S.C.

§ 1227(a)(2)(A)(iii), (a)(2)(B)(i). Mr. Torres-Ledesma sought

reconsideration by the Board. When that effort proved unsuccessful, he

filed two petitions for review, one addressing the Board’s original decision

and the other addressing the denial of reconsideration. We grant the

petitions because the Board apparently assumed that the conviction

involved the felony portion of the Oklahoma statute.

     The Board applied a categorical approach. This approach ignores the

petitioner’s actual conduct, focusing instead on the minimum needed for a

conviction under state law. Ibarra v. Holder, 736 F.3d 903, 907 (10th Cir.

2013). Applying this approach, the Board concluded that violation of the

Oklahoma law would always constitute an aggravated felony and a

violation involving a controlled substance. In reviewing that

determination, we engage in de novo review. Barrera-Quintero v. Holder,

699 F.3d 1239, 1243 (10th Cir. 2012).

     Applying de novo review, we reverse because the Board should not

have used a categorical approach. Section 2-404 has two subsections.

Subsection A makes certain activities unlawful, and Subsection B provides

two forms of punishment: (1) a civil fine and (2) a felony conviction. The

existence of two different penalties makes § 2-404 “divisible.” Descamps


                                    -2-
v. United States, __ U.S. __, 133 S. Ct. 2276, 2281 (2013). One penalty

would involve a felony conviction, and the other penalty would not.

Because the state statute was divisible, the Board had to use a modified

categorical approach. Ibarra, 736 F.3d at 907. The Board failed to do so.

      That failure tainted the Board’s conclusion. To conclude that the

conviction involved an aggravated felony or a violation involving a

controlled substance, the Board had to determine whether the conviction

involved a felony or a civil fine. The Board appeared to assume the

conviction involved a felony without actually deciding the issue. Without

an agency determination in the first instance, we must reverse and remand.

See Mena-Flores v. Holder, 776 F.3d 1152, 1158 (10th Cir. 2015) (stating

it would be inappropriate for this court to make new factual findings);

Niang v. Gonzales, 422 F.3d 1187, 1197 (10th Cir. 2005) (stating that the

court should not assume the role of the Board of Immigration Appeals, but

should leave decisions for the Board to decide in the first instance).

      In these circumstances, the Court grants the petitions for review and

remands to the Board of Immigration Appeals. On remand, the Board must

(1) apply a modified categorical approach in determining whether the




                                     -3-
conviction involved a felony or a civil fine and (2) explain the reasons for

this determination.


                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




                                    -4-
