               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


PEDRO MADRIGAL-BARCENAS, AKA            No. 10-72049
Juan Reynosa-Varsenas,
                       Petitioner,       B.I.A. No.
                                        A088-914-486
                v.

LORETTA E. LYNCH, Attorney               OPINION
General,
                      Respondent.


   On Remand from the United States Supreme Court

                Filed August 10, 2015

    Before: John T. Noonan, A. Wallace Tashima,
        and Susan P. Graber, Circuit Judges.

              Opinion by Judge Graber
2               MADRIGAL-BARCENAS V. LYNCH

                           SUMMARY*


                           Immigration

    On remand from the United States Supreme Court, the
panel granted Pedro Madrigal-Barcenas’ petition for review
of the Board of Immigration Appeals’ decision finding him
inadmissible on the ground that his Nevada state law
conviction for possessing drug paraphernalia constituted a
conviction for violation of a law relating to a controlled
substance.

     In Madrigal-Barcenas v. Lynch, 135 S.Ct. 2828 (2015),
the Supreme Court vacated this court’s decision for further
consideration in light of Mellouli v. Lynch, 135 S. Ct. 1980
(2015) (holding that a drug paraphernalia possession
conviction did not render an alien categorically removable),
the panel held that petitioner’s conviction is not a categorical
controlled substance offense. The panel held that the Nevada
statute is overbroad because it penalizes possession of
paraphernalia in connection with substances not controlled
under federal law. The panel held that petitioner was thus not
inadmissible, and remanded for the agency to consider in the
first instance the potential application of the modified
categorical approach and the merits of petitioner’s
cancellation of removal application.

    The panel also held in light of Mellouli that Luu-Le v.
INS, 224 F.3d 911 (9th Cir. 2000) and its progeny (holding
that it was irrelevant whether a specific drug paraphernalia

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             MADRIGAL-BARCENAS V. LYNCH                    3

conviction involved a federally controlled substance) are no
longer good law, and rejected as effectively overruled the
holdings in United States v. Oseguera-Madrigal, 700 F.3d
1196, 1199–1200 (9th Cir. 2012); Bermudez v. Holder, 586
F.3d 1167, 1168–69 (9th Cir. 2009) (per curiam); Estrada v.
Holder, 560 F.3d 1039, 1042 (9th Cir. 2009); Luu-Le, 224
F.3d at 916.


                        COUNSEL

Jon Dean, Pantea Ahmadi, Jessica Mariani, and Saurish
Bhattacharjee, McDermott Will & Emery LLP, Los Angeles,
California, for Petitioner.

W. Manning Evans, Senior Litigation Counsel, Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, and
Donald E. Keener, Deputy Director, Civil Division, United
States Department of Justice, Washington, D.C., for
Respondent.


                        OPINION

GRABER, Circuit Judge:

   Petitioner Pedro Madrigal-Barcenas, a native and citizen
of Mexico, applied for cancellation of removal pursuant to
8 U.S.C. § 1229b(b). He petitions for review of the Board of
Immigration Appeals’ (“BIA”) denial of that application.

    Petitioner was convicted of possessing drug paraphernalia
in violation of section 453.566 of the Nevada Revised
Statutes.    The question on review is whether that
4             MADRIGAL-BARCENAS V. LYNCH

misdemeanor conviction renders Petitioner ineligible for
cancellation of removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II)
(“Section 1182”), which provides that an applicant is
inadmissible if the applicant stands convicted under “any law
or regulation . . . relating to a controlled substance (as defined
in section 802 of [the Federal Controlled Substances Act]).”
In ruling that Petitioner was inadmissible, the BIA relied on
In re Martinez-Espinoza, 25 I. & N. Dec. 118 (B.I.A. 2009),
to hold that the conviction was for violation of a law relating
to a controlled substance. Applying our extant precedent to
the same effect, United States v. Oseguera-Madrigal,
700 F.3d 1196, 1199–1200 (9th Cir. 2012); Bermudez v.
Holder, 586 F.3d 1167, 1168–69 (9th Cir. 2009) (per curiam);
Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir. 2009); Luu-
Le v. INS, 224 F.3d 911, 916 (9th Cir. 2000), we denied the
petition. Madrigal-Barcenas v. Holder, 507 F. App’x 715
(9th Cir. 2013) (unpublished).

    Subsequently, the Supreme Court issued Mellouli v.
Lynch, 135 S. Ct. 1980 (2015). The Court then granted a writ
of certiorari to Petitioner, vacated our decision, and remanded
this case for further consideration in light of Mellouli.
Madrigal-Barcenas v. Lynch, 135 S. Ct. 2828 (2015). We
ordered supplemental briefing from the parties on the effect
of Mellouli. Reviewing de novo, Cazarez-Gutierrez v.
Ashcroft, 382 F.3d 905, 909 (9th Cir. 2004), we now grant the
petition, hold that Petitioner’s conviction is not categorically
for a controlled substance offense, and remand for further
proceedings.

    In Mellouli, the Court addressed whether a misdemeanor
conviction under Kansas’ drug paraphernalia statute renders
an alien categorically removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) (“Section 1227”). 135 S. Ct. at 1983–84.
              MADRIGAL-BARCENAS V. LYNCH                     5

Section 1227 and Section 1182 contain identical text; each
attaches immigration consequences to a conviction under a
law “relating to a controlled substance (as defined in section
802 [of the Controlled Substances Act]).” The Court held
that the Kansas conviction did not trigger removal under
Section 1227. Id. at 1984. In so holding, the Court reasoned
that the text of Section 1227 “limits the meaning of
‘controlled substance’ . . . to the substances controlled under
§ 802.” Id. at 1990–91.

      Before Mellouli, the BIA had held that a conviction for
possession or distribution of a controlled substance met the
requirements of Section 1227 only if “the state statute under
which the alien was convicted covered federally controlled
substances and not others.” Id. at 1987. But for
paraphernalia convictions, BIA precedent required only that
the crime be “associated with the drug trade in general.” Id.
at 1988–89 (internal quotation marks omitted). As noted, we
had drawn the same distinction in Luu-Le, 224 F.3d at 916,
and in several other cases. Mellouli rejected that approach,
holding that there is “no home in the text” of Section 1227 for
different treatment of convictions for possession and
distribution of a controlled substance, on the one hand, and
possession of drug paraphernalia, on the other. 135 S. Ct. at
1989. The Court concluded that “the text [of Section 1227]
. . . limits the meaning of ‘controlled substance,’ for removal
purposes, to the substances controlled under § 802.” Id. at
1990–91.

    The Court expressly abrogated Martinez-Espinoza, on
which the BIA relied here. Id. at 1989. The government
concedes, and we agree, that Luu-Le and its progeny no
longer are good law after Mellouli, either, and we expressly
reject as effectively overruled the relevant holdings in
6             MADRIGAL-BARCENAS V. LYNCH

Oseguera-Madrigal, 700 F.3d at 1199–1200; Bermudez,
586 F.3d at 1168–69; Estrada, 560 F.3d at 1042; and Luu-Le,
224 F.3d at 916. See Miller v. Gammie, 335 F.3d 889, 893
(9th Cir. 2003) (en banc) (“[W]here the reasoning or theory
of our prior circuit authority is clearly irreconcilable with the
reasoning or theory of intervening higher authority, a three-
judge panel should consider itself bound by the later and
controlling authority, and should reject the prior circuit
opinion as having been effectively overruled”).

      For present purposes, we see no material difference
between the Kansas statute at issue in Mellouli and the
Nevada statute at issue in this case. Kansas law lists some
substances that are not on the federal list, Mellouli, 135 S. Ct.
at 1984, and it is undisputed that Nevada law lists at least
some substances that are not on the federal list, compare
21 U.S.C. § 802 with Nev. Admin. Code §§ 453.510–453.550
(listing Datura, hydrogen iodide gas, human growth hormone,
and Carisoprodol, as controlled substances). Analytically, it
is unimportant whether Nevada regulates sixteen substances
that are not controlled substances under federal law, as
Petitioner claims, or only four, as the government concedes;
it is the fact, not the degree, of overinclusiveness that matters.
See Mellouli, 135 S. Ct. at 1989 (rejecting a test that would
deem “a state paraphernalia possession conviction
categorically relate[d] to a federal controlled substance so
long as there is ‘nearly a complete overlap’ between the drugs
controlled under state and federal law” (quoting Mellouli v.
Holder, 719 F.3d 995, 1000 (8th Cir. 2013))). Because the
Nevada statute penalizes possession of paraphernalia in
connection with substances that are not controlled under
federal law, we hold that it is overbroad, so that Petitioner’s
conviction is not categorically for violation of a law relating
to a controlled substance.
              MADRIGAL-BARCENAS V. LYNCH                      7

    We agree with Respondent, though, that a remand is
required. We hold only that Petitioner is not categorically
barred from seeking cancellation of removal because of his
misdemeanor conviction under Nevada’s drug paraphernalia
statute. The agency must consider, in the first instance, the
potential application of the modified categorical approach, as
well as the merits of Petitioner’s request for cancellation. See
Mellouli, 135 S. Ct. at 1986 n.4 (expressly declining to decide
whether the modified categorical approach could apply); INS
v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam)
(“[T]he proper course, except in rare circumstances, is to
remand to the agency for additional investigation or
explanation.” (quoting Fla. Power & Light Co. v. Lorion,
470 U.S. 729, 744 (1985))).

   Petition GRANTED; REMANDED.
