                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUL 9 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ROBERTO MADRID-FARFAN,                          No.    13-73048

                Petitioner,                     Agency No. A092-444-197

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                       Argued and Submitted June 15, 2018
                            San Francisco, California

Before: SCHROEDER, EBEL,** and GOULD, Circuit Judges.

      Roberto Madrid-Farfan (Petitioner) seeks review of the Board of

Immigration Appeals’ (BIA) holding that because of a 1999 conviction under

Arizona Revised Statutes (ARS) § 13-3408 he is removable and ineligible for

discretionary relief—including waiver of inadmissibility and adjustment of status.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Petitioner argues that ARS § 13-3408 is not a categorical controlled substance

offense under 8 U.S.C. § 1227(a)(2)(B)(i), and that the BIA erred in holding that

he was ineligible for discretionary relief.1 We hold that because ARS § 13-3408 is

overbroad and indivisible with regard to drug type, Petitioner was not convicted of

a categorical controlled substance offense. We grant the petition and remand for

further proceedings consistent with our holding here.

      The parties agree that ARS § 13-3408 is overbroad because it criminalizes

substances that are not on the federal controlled substance lists. See 21 U.S.C. §§

802(6), 812. But the parties dispute whether the statute is divisible by drug type.

A statute is divisible if it sets out alternative elements of what are effectively

separate crimes, rather than merely describing different “means” for accomplishing

a single crime. United States v. Martinez-Lopez, 864 F.3d 1034, 1038–39 (9th Cir.

2017) (en banc). ARS § 13-3408 is indivisible with regard to drug type if a jury

could disagree about the type of drug a defendant possessed and still convict.

Descamps v. United States, 570 U.S. 254, 272–73 (2013); Lopez-Valencia v.

Lynch, 798 F.3d 863, 868–69 (9th Cir. 2015).

      Arizona courts have upheld convictions even when the prosecution did not

prove the specific drug type. State v. Prescott, No. 1 CA-CR 15-0188, 2016 Ariz.



1
 Petitioner does not challenge the holding that he is otherwise removable as an
alien present without lawful status under 8 U.S.C. § 1227(a)(1)(B).

                                            2
App. Unpub. LEXIS 179, at *3 (Feb. 16, 2016) (upholding conviction where it was

proven that the defendant knowingly possessed a controlled substance, but not

proven which substance that was); State v. Castorina, No. 1 CA-CR 08-0816, 2010

Ariz. App. Unpub. LEXIS 588, at *4 (June 17, 2010) ( “[I]t is sufficient for the

state to show that defendant knew he possessed a narcotic or dangerous drug;

neither our statutes nor case law require the state to prove that defendant knew

which particular drug defined under our laws as a ‘dangerous’ drug or ‘narcotic’

drug he knew he possessed”).2 The Arizona jury instructions do not require the

jury to make a finding of fact regarding the specific substance possessed. See Rev.

Ariz. Jury Instructions (Criminal), 34.082 (3d ed.). This is in contrast to the

California jury instructions addressed in Martinez-Lopez, 864 F.3d at 1041, which

required the jury to fill in a blank space with the specific type of drug.

      The government points to cases where Arizona courts have upheld multiple

convictions when a defendant possessed more than one type of drug. See, e.g.,

State v. Lautzenheiser, 498 P.2d 605, 605–06 (Ariz. Ct. App. 1972); State v.

Wright, 370 P.3d 1122, 1122– 23 (Ariz. Ct. App. 2016); State v. Tarango, 895

P.2d 1009, 1010 (Ariz. Ct. App. 1994). These examples are unpersuasive for two


2
  Respondent attempts to downplay the significance of these cases on grounds that
they are unpublished. But unpublished opinions are relevant to assessing whether
a state crime is a categorical match. Nicanor-Romero v. Mukasey, 523 F.3d 992,
1005 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos v.
Holder, 558 F.3d 903 (9th Cir. 2009) (en banc).

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reasons. First, in none of these cases was the propriety of multiple convictions at

issue and the court did not address the question at issue here—whether drug type is

an element. Second, these cases may show that where the government proves that

a defendant possessed more than one drug type, multiple convictions can be

upheld. But that result is consistent with the government not having to prove the

particular type of drug to sustain a conviction. If a court gains a separate

conviction for each type of drug possessed, this may show that proof of multiple

drug types is sufficient to sustain multiple convictions, but it does not resolve

whether it is necessary for a jury to agree on a single drug type to convict. See

Moncrieffe v. Holder, 569 U.S. 184, 190–92 (2013). Prescott, Castorina, and the

Arizona model jury instructions show that a jury could convict without proof of

drug type. Drug type is not a necessary element of conviction, and we hold that

the statute is not divisible.3



       PETITION GRANTED and REMANDED.


3
  The government claims that Petitioner did not exhaust his argument that ARS §
13-3408 is not divisible by drug type. To exhaust a claim a petitioner needs to
raise an issue before the BIA to put it on notice; the petitioner need not make a
specific argument. Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per
curiam). While Petitioner did not specifically contend that ARS § 13-3408 is
indivisible by drug type, he did argue that ARS § 13-3408 was not a categorical
match. That is enough for exhaustion. See Vizcarra-Ayala v. Mukasey, 514 F.3d
870, 873 (9th Cir. 2008); Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1
(9th Cir. 2007).

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