Jaime Lazo v. Robert Wilkinson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAIME LAZO, AKA Jaime Lazo No. 14-73182

Venegas,

Petitioner, Agency No.

A012-666-503

v.

ROBERT M. WILKINSON, Acting OPINION

Attorney General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted July 7, 2020*

Pasadena, California

Filed February 26, 2021

Before: Marsha S. Berzon and Daniel P. Collins, Circuit

Judges, and Gary S. Katzmann, ** Judge.

Opinion by Judge Collins

*

The panel unanimously concludes that this case is suitable for

decision without oral argument. See FED. R. APP. P. 34(a)(2)(C).

**

The Honorable Gary S. Katzmann, Judge for the United States

Court of International Trade, sitting by designation.

2 LAZO V. WILKINSON

SUMMARY ***

Immigration

Denying Jaime Lazo’s petition for review of a decision

of the Board of Immigration Appeals, the panel held that:

1) California Health and Safety Code § 11350, possession of

a controlled substance, is divisible as to controlled

substance; and 2) because Lazo’s conviction was for

cocaine, a federal controlled substance, Lazo was properly

ordered removed for an offense “relating to a controlled

substance” under Immigration and Nationality Act

§ 237(A)(2)(B)(i).

The panel observed that § 11350 is not categorically an

offense “relating to a controlled substance” because

California’s relevant list of controlled substances is

overbroad in comparison to the Controlled Substances Act

(“CSA”). However, the panel concluded that Lazo’s

conviction qualified as an offense “relating to controlled

substance” under the so-called “modified categorical”

approach.

In so concluding, the panel held that § 11350 is divisible

as to controlled substance, observing that this court in United

States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en

banc), held that California Health and Safety Code § 11352

is divisible as to controlled substance. The panel concluded

that Martinez-Lopez’s reasoning applies equally to § 11350,

explaining that: 1) there is no meaningful difference between

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

LAZO V. WILKINSON 3

the text of the statutes; 2) the same California caselaw, which

Martinez-Lopez found dispositive, applies equally to

§ 11350; and 3) just as with § 11352, the pattern jury

instruction for § 11350 requires that the controlled substance

be identified in the instructions and that, in order to convict,

the jury must unanimously find that the defendant possessed

that substance.

The panel further concluded that Lazo’s conviction

documents unambiguously established that his conviction

was for cocaine, a controlled substance under the CSA.

Therefore, the panel concluded that Lazo’s conviction was a

violation of law “relating to a controlled substance” that

rendered him removable.

COUNSEL

Carlos A. Cruz, Alhambra, California, for Petitioner.

Melissa Neiman-Kelting and M. Jocelyn Lopez Wright,

Senior Litigation Counsel; Office of Immigration Litigation,

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent.

OPINION

COLLINS, Circuit Judge:

Jaime Lazo, a native and citizen of Mexico, petitions for

review of the decision of the Board of Immigration Appeals

(“BIA”), which held that Lazo’s 1999 conviction for simple

possession of cocaine in violation of California Health and

Safety Code § 11350 qualifies as a “controlled substance

4 LAZO V. WILKINSON

offense,” thereby rendering him removable under

§ 237(a)(2)(B)(i) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1227(a)(2)(B)(i). Although California

Health and Safety Code § 11350, by its terms, applies to a

broader range of “controlled substance[s]” than the narrower

federal definition that governs under § 237(a)(2)(B)(i), we

agree with the BIA that Lazo’s conviction nonetheless

qualifies under the so-called “modified categorical”

approach to analyzing prior convictions. Tejeda v. Barr,

960 F.3d 1184, 1186–87 (9th Cir. 2020). Applying that

approach here, we conclude that § 11350 is a “divisible”

statute that defines multiple alternative offenses, depending

upon which controlled substance was possessed. Because

Lazo’s conviction under § 11350 was for possession of

cocaine, and because cocaine qualifies as a “controlled

substance” under the applicable federal definition, it follows

that Lazo was convicted of an offense “relating to a

controlled substance” within the meaning of

§ 237(a)(2)(B)(i). He was therefore properly ordered to be

removed from the United States under that section, and we

deny his petition for review.

I

Lazo is a native and citizen of Mexico who was admitted

to the United States as a lawful permanent resident on

October 13, 1961. After being convicted in the 1980s on a

federal charge of conspiracy to possess cocaine base with

intent to distribute, Lazo was the subject of a previous

deportation proceeding in the early 1990s. That proceeding

was terminated in Lazo’s favor in 1991 after an immigration

judge granted him a waiver of inadmissibility under the

since-repealed provisions of former § 212(c) of the INA,

8 U.S.C. § 1182(c) (Supp. II 1990), repealed by Pub. L. No.

104-208, Div. C, § 304(b), 110 Stat. 3009, 3009–597 (1996).

LAZO V. WILKINSON 5

The current removal proceedings were instituted in 2008

after Lazo was convicted earlier that year of burglary in

violation of California Penal Code § 459. The Department

of Homeland Security (“DHS”) alleged that § 459 was an

aggravated felony warranting removal under INA

§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). We

subsequently held, however, that a violation of § 459 was

not categorically an aggravated felony. See Hernandez-Cruz

v. Holder, 651 F.3d 1094, 1100–01 (9th Cir. 2011). DHS

then withdrew that removability charge in 2012 and instead

filed an additional charge alleging that Lazo was removable

under INA § 237(a)(2)(B), based on a conviction for an

offense “relating to a controlled substance.” See 8 U.S.C.

§ 1227(a)(2)(B)(i). The basis for this charge was Lazo’s

1999 conviction in California state court for possession of

cocaine in violation of California Health and Safety Code

§ 11350(a). 1

1

At the time, § 11350(a) provided as follows:

Except as otherwise provided in this division, every

person who possesses (1) any controlled substance

specified in subdivision (b) or (c), or paragraph (1) of

subdivision (f) of Section 11054, specified in

paragraph (14), (15), or (20) of subdivision (d) of

Section 11054, or specified in subdivision (b), (c), or

(g) of Section 11055, or (2) any controlled substance

classified in Schedule III, IV, or V which is a narcotic

drug, unless upon the written prescription of a

physician, dentist, podiatrist, or veterinarian licensed

to practice in this state, shall be punished by

imprisonment in the state prison.

CAL. HEALTH & SAFETY CODE § 11350(a) (1999). Cocaine was (and

remains) a “controlled substance” under “subdivision (b) . . . of Section

11055.” Id.; see also id. § 11055(b)(6) (2021); id. § 11055(b)(6) (1999).

6 LAZO V. WILKINSON

The immigration judge sustained the charge of

removability and denied Lazo’s request for voluntary

departure, which was ultimately the only form of relief from

removal that Lazo sought. The immigration judge

concluded that § 11350(a)’s sweep was too broad to be a

categorical match for a “controlled substance” offense under

INA § 237(a)(2)(B)(i), but she went on to hold that

§ 11350(a) was a divisible statute and that, under a modified

categorical approach, Lazo’s conviction for possession of

cocaine under that statute counted as a controlled substance

offense. The BIA upheld that ruling, expressly agreeing that,

under the modified categorical approach, Lazo’s conviction

under § 11350(a) was a controlled substance offense under

INA § 237(a)(2)(B)(i). Lazo timely petitions for review, and

we have jurisdiction under INA § 242, 8 U.S.C. § 1252.

“We review de novo whether a particular conviction under

state law is a removable offense.” Arellano Hernandez v.

Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016).

II

Under § 237(a)(2)(B)(i) of the INA, an alien is generally

removable if he or she has been convicted of a violation of a

federal, state, or foreign law “relating to a controlled

substance,” as that term is defined in § 102 of the Controlled

Substances Act (“CSA”), 21 U.S.C. § 802. See 8 U.S.C.

§ 1227(a)(2)(B)(i). 2 Under that cross-referenced definition,

In the current version of § 11350(a), the list of controlled substances has

changed somewhat, as have the prescribed punishments, but the core

language defining the offense remains substantially the same. See infra

note 6. Our analysis in this case thus fully applies to both versions of the

statute.

2

Section 237(a)(2)(B)(i) exempts from its removability rule any

conviction for “a single offense involving possession for one’s own use

LAZO V. WILKINSON 7

the “term ‘controlled substance’ means a drug or other

substance, or immediate precursor, included in schedule I,

II, III, IV, or V of part B of this subchapter,” 21 U.S.C.

§ 802(6), and “cocaine” is specifically included in “schedule

II,” id. § 812(c), sched. II(A)(4). Contrary to Lazo’s

contention, we conclude that his 1999 conviction for

possession of cocaine in violation of California Health and

Safety Code § 11350 is an offense relating to a “controlled

substance,” as that term is defined in the CSA. 3

A

In assessing whether a conviction for a particular state

offense counts as one “relating to a controlled substance”

under § 237(a)(2)(B)(i), we begin by applying the so-called

“categorical approach,” under which a “state conviction

triggers removal only if, by definition, the underlying crime

falls within a category of removable offenses defined by

federal law.” Mellouli v. Lynch, 575 U.S. 798, 805 (2015)

(emphasis added); see also Tejeda, 960 F.3d at 1186–87.

Applying the categorical approach to § 237(a)(2)(B)(i), the

Supreme Court has explained that this “removal provision is

of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i). No party

contends that this clause has any bearing on the analysis in this case.

3

We reject the Government’s argument that Lazo failed to exhaust

his challenge to the divisibility of § 11350 by not raising it in his brief

before the BIA and that we therefore lack jurisdiction over the issue.

Despite what Lazo argued in his brief below, the BIA decided the merits

of this issue. Specifically, the BIA held that, after recognizing that

§ 11350 is not “categorically a controlled substance offense,” the

immigration judge “properly” proceeded to then apply a “modified

categorical analysis.” We have long held that “claims addressed on the

merits by the BIA are exhausted” and are therefore within our

jurisdiction to review. Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874

(9th Cir. 2008).

8 LAZO V. WILKINSON

. . . satisfied when the elements that make up the state crime

of conviction relate to a federally controlled substance” as

defined in CSA § 102. Mellouli, 575 U.S. at 811 (emphasis

added). In Mellouli, the Court noted that the Kansas drug

paraphernalia statute at issue there relied on a list of drugs

that “included at least nine substances” that were not

included within the CSA’s definition. Id. at 808. As such,

the Court held, the Kansas statute was not a categorical

match for purposes of § 237(a)(2)(B)(i). Id. at 808, 813.

Relying on Mellouli, we have similarly recognized that

the list of controlled substances applicable under many of

California’s controlled substances laws “include[s]

‘numerous substances that are not similarly regulated by the

CSA.’” Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir.

2009) (citation omitted); see also United States v. Martinez-

Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc).

Because the controlled-substance-possession offense set

forth in California Health and Safety Code § 11350(a)

likewise relies on an overbroad list of controlled substances

comparable to the related California controlled-substance-

trafficking statute at issue in Mielewczyk and Martinez-

Lopez, compare Cal. Health & Safety Code § 11352 with id.

§ 11350; see also infra note 6, it follows that § 11350 is not

categorically an offense “relating to a controlled substance”

under INA § 237(a)(2)(B)(i). Indeed, the Government does

not contest this point in this court.

B

Because § 11350 is not a categorical match to the offense

described in INA § 237(a)(2)(B)(i), we next ask whether

Lazo’s conviction might nonetheless qualify under the

“modified categorical approach.” We conclude that it does.

LAZO V. WILKINSON 9

1

Under the “modified categorical approach,” we must

first consider whether § 11350 is “divisible,” meaning that it

“list[s] elements in the alternative, and thereby define[s]

multiple crimes.” Mathis v. United States, 136 S. Ct. 2243,

2249 (2016) (emphasis added). If § 11350 does set out

alternative offenses with different elements, then we may

“consult a limited class of documents, such as indictments

and jury instructions, to determine which alternative formed

the basis of the [alien’s] prior conviction.” Descamps v.

United States, 570 U.S. 254, 257 (2013). And if the

particular alternative that those documents reveal “form[ed]

the basis of the conviction” under state law is categorically

an offense relating to a “controlled substance” as defined

under the CSA, then it qualifies as a removable offense

under § 237(a)(2)(B)(i) of the INA. Villavicencio v.

Sessions, 904 F.3d 658, 664 (9th Cir. 2018). By contrast, if

a statute “lists alternative means of fulfilling one (or more)”

of the “crime’s elements,” that is not enough to establish that

the statute is divisible. Mathis, 136 S. Ct. at 2253 (emphasis

added).

In deciding whether “an alternatively phrased list” in a

state statute sets forth alternative “elements or means,” a

court should consider any “authoritative sources of state

law,” such as the statutory text or controlling decisions of the

state courts. Mathis, 136 S. Ct. at 2256; see also Martinez-

Lopez, 864 F.3d at 1039. In the absence of such sources, the

“record of a prior conviction itself” may clearly show, in the

“indictment and jury instructions,” that “the statute contains

a list of elements, each one of which goes toward a separate

crime.” Mathis, 136 S. Ct. at 2256–57. If, for example, a

jury need not unanimously agree as to which of the listed

alternatives was satisfied in a particular case, that is a clear

10 LAZO V. WILKINSON

sign that they are “alternative methods of committing one

offense” and not alternative elements of separate offenses.

Id. at 2256 (simplified).

We addressed a similar question in Martinez-Lopez,

where we held that the listing of alternative controlled

substances set forth in the related drug-trafficking offense

defined in California Health and Safety Code § 11352 “does

not simply describe alternative methods of committing one

offense,” but rather defines alternative elements. 864 F.3d

at 1040 (simplified). 4 Reviewing the authoritative

California caselaw, we noted that the California Supreme

Court has “recognize[d] multiple section 11352 convictions

for a single act as it relates to multiple controlled

substances,” and we therefore concluded that the state high

court had “implicitly held that the controlled substance

requirement is an element.” Id. at 1041. We placed

particular weight on California cases construing “section

654 of the California Penal Code, which prohibits multiple

sentences for a single ‘act or omission that is punishable in

different ways by different provisions of law.’” Id. at 1040.

This caselaw, we concluded, confirmed that, in California

drug cases involving several different controlled substances,

(1) “multiple sentences are proper so long as the defendant

has multiple criminal objectives”; and (2) “multiple

convictions” remain proper “even when a defendant has a

single criminal objective.” Id. We further explained that,

4

Whereas § 11350 punishes anyone “who possesses . . . any

controlled substance” that is on a specified list of such substances, see

CAL. HEALTH & SAFETY CODE § 11350(a), the offense defined in

§ 11352 applies to anyone “who transports, imports into this state, sells,

furnishes, administers, or gives away, or offers to transport, import into

this state, sell, furnish, administer, or give away, or attempts to import

into this state or transport . . . any controlled substance” on substantially

the same list, see id. § 11352(a).

LAZO V. WILKINSON 11

under this authority, defendants in California “are routinely

subjected to multiple convictions under a single statute for a

single act as it relates to multiple controlled substances.” Id.

We also noted that the California pattern jury instructions

applicable to an offense under § 11352 “require a jury to fill

in a blank identifying ‘a controlled substance’—i.e., only

one—demonstrating that the jury must identify and

unanimously agree on a particular controlled substance.” Id.

at 1041. In light of these considerations, we held that

“section 11352 is divisible with regard to its controlled

substance requirement.” Id. 5

For several reasons, we conclude that Martinez-Lopez’s

reasoning as to California Health and Safety Code § 11352

applies equally to § 11350, and that the latter statute is

therefore likewise divisible as to its controlled substance

element.

First, there is no meaningful difference between the

relevant text of § 11350 and § 11352. Although the listings

of controlled substances contained in each statute have

changed in minor and immaterial respects between 1999

(when Lazo was convicted) and today, the corresponding

contemporaneous lists in each statute are virtually identical

to one another, both in their 1999 versions and in their

current versions. 6 Given the materially identical wording of

5

Martinez-Lopez also separately addressed whether § 11352(a) was

divisible as to its actus reus, which (as noted above, see supra note 4)

lists multiple alternative verb phrases. See 864 F.3d at 1041–43.

Because the operative language in § 11350(a) uses only one verb—

“possesses”—no such additional issue is presented here.

6

Compare CAL. HEALTH & SAFETY CODE § 11350(a) (2021)

(applying to “(1) any controlled substance specified in subdivision (b),

(c), (e), or paragraph (1) of subdivision (f) of Section 11054, specified in

12 LAZO V. WILKINSON

the relevant language in both statutes, we lack any textual

basis for reaching a different conclusion as to § 11350 than

Martinez-Lopez did with respect to § 11352.

We reached the same conclusion in Tejeda, 960 F.3d at

1186, where we addressed the divisibility of California

Health and Safety Code § 11550(a), which recites a

substantially similar list as § 11352(a) in providing that a

“person shall not use, or be under the influence of[,] any

controlled substance.” As we explained, under Martinez-

Lopez, other California “statutes incorporating those lists”—

such as § 11550—“are divisible and the modified categorical

approach applies.” 960 F.3d at 1186. Because § 11350 uses

much of the same language as § 11352 and § 11550 in

borrowing a similar list, Tejeda confirms that § 11350 is

divisible under Martinez-Lopez. See also United States v.

Ocampo-Estrada, 873 F.3d 661, 668 (9th Cir. 2017)

(concluding that Martinez-Lopez’s reasoning “logically

extends past section 11352 to other California drug laws that

paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or

specified in subdivision (b) or (c) of Section 11055, or specified in

subdivision (h) of Section 11056, or (2) any controlled substance

classified in Schedule III, IV, or V which is a narcotic drug, unless upon

the written prescription of a physician, dentist, podiatrist, or veterinarian

licensed to practice in this state”) with id. § 11352(a) (2021) (reciting

identical list with immaterial grammatical changes); compare also id.

§ 11350(a) (1999) (applying to “(1) any controlled substance specified

in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section

11054, specified in paragraph (14), (15), or (20) of subdivision (d) of

Section 11054, or specified in subdivision (b), (c), or (g) of Section

11055, or (2) any controlled substance classified in Schedule III, IV, or

V which is a narcotic drug, unless upon the written prescription of a

physician, dentist, podiatrist, or veterinarian licensed to practice in this

state”) with id. § 11352 (1999) (reciting an identical list, except for the

addition of subdivision “(e)” of “Section 11054,” which relates to certain

depressants).

LAZO V. WILKINSON 13

criminalize an activity relating to other referenced controlled

substances” and applying that reasoning to the possession-

for-sale statute, Cal. Health & Safety Code § 11378).

Second, the same California caselaw construing Penal

Code § 654, which Martinez-Lopez found dispositive as to

§ 11352, also applies equally to § 11350. More than

60 years ago, the California Court of Appeal upheld separate

convictions (with concurrent sentences) for simultaneous

possession of three different drugs under the predecessor

statute to § 11350. See People v. Lopez, 337 P.2d 570, 574–

75 (Cal. Ct. App. 1959). 7 The court in Lopez expressly

rejected the defendant’s argument that his multiple

convictions violated Penal Code § 654, holding that “the

possession of each of the three different and distinct types of

narcotics, even at the same time, constituted three separate

offenses.” Id. at 574. The California courts have repeatedly

reaffirmed the vitality of Lopez and of the rule that

simultaneous possession of multiple controlled substances

may warrant separate convictions and separate punishments.

See, e.g., People v. Barger, 115 Cal. Rptr. 298, 304 (Cal. Ct.

App. 1974) (“California courts have uniformly held that

7

The defendant in Lopez was charged with three counts of simple

“possession of heroin, marijuana and amidone, in violation of Section

11500, Health & Safety Code.” 337 P.2d at 571. At the time, that

provision prohibited both simple possession of narcotics, as well as the

various transportation and sale activities now covered by § 11352. See

1955 Cal. Stat. 2675, ch. 1466, § 1 (enacting the version of § 11500

applicable in 1959). In 1972, the California Legislature repealed

§ 11500 and replaced it with separate provisions proscribing simple

possession (§ 11350) and transport and sales (§ 11352). See 1972 Cal.

Stat. 2986, 2987, 3011–12, ch. 1407, §§ 2, 3; see also People v. Rouser,

69 Cal. Rptr. 2d 563, 565 (Cal. Ct. App. 1997) (noting that the defendant

in Lopez was “separately convicted under Health and Safety Code

section 11500 [now § 11350] for possession of heroin, of marijuana and

of amidone”).

14 LAZO V. WILKINSON

section 654 does not preclude multiple punishment for

simultaneous possession of various narcotic drugs.” (citing,

inter alia, Lopez)); see also People v. Monarrez, 78 Cal.

Rptr. 2d 247, 249–50 (Cal. Ct. App. 1998) (citing, inter alia,

Barger and Lopez). The case law construing Penal Code

§ 654—on which Martinez-Lopez relied heavily in reaching

its conclusion as to the divisibility of § 11352—is thus

equally applicable to § 11350. See Martinez-Lopez,

864 F.3d at 1040 (noting that, “as recently as 2012,” the

California Supreme Court had “reaffirmed” that

“simultaneous possession of different items of contraband

are separate crimes” (internal quotation marks omitted)

(quoting People v. Jones, 278 P.3d 821, 827 (Cal. 2012))).

That provides further strong support for concluding that

§ 11350 is divisible as to its controlled substance element.

Third, just as with the pattern jury instruction for

§ 11352, the official California pattern jury instruction

applicable to offenses under § 11350 also requires that the

specific controlled substance be identified in the instructions

and that, in order to convict, the jury must unanimously find

that the defendant possessed that particular substance. See

Jud. Council of Cal., Criminal Jury Instructions, No. 2304

(2020); see also California Jury Instructions—Criminal, No.

12.00 (6th ed. 1996) (same for prior pattern instruction for

§ 11350). Martinez-Lopez’s reliance on this feature of the

§ 11352 pattern jury instruction thus equally applies to

§ 11350. See 864 F.3d at 1041; see also Ocampo-Estrada,

873 F.3d at 668 (noting that Martinez-Lopez’s observation

concerning the pattern jury instruction for § 11352 also

applied to the pattern jury instruction for § 11378, and

LAZO V. WILKINSON 15

therefore supported the view that § 11378 was divisible as to

the controlled substance). 8

Accordingly, in both its current and 1999 versions,

California Health & Safety Code § 11350 is divisible with

regard to substance. 9

8

In Martinez-Lopez, we mistakenly assumed that the pattern

instruction required the “jury to fill in a blank identifying” the controlled

substance at issue, see 864 F.3d at 1041 (emphasis added), when the

pattern instruction unmistakably contemplates that the court will identify

the substance at issue in finalizing the instruction before giving it to the

jury. See JUD. COUNCIL OF CAL., CRIMINAL JURY INSTRUCTIONS, No.

2301 (2020). This immaterial error does not vitiate Martinez-Lopez’s

reasoning on this point, because either way the jury is specifically

instructed that it must unanimously find that a particular substance was

possessed.

9

By contrast, we distinguished Martinez-Lopez and reached the

opposite conclusion in addressing a very differently worded provision in

United States v. Graves, 925 F.3d 1036 (9th Cir. 2019). The statute at

issue in Graves was California Penal Code § 4573.6, which at the

relevant time prohibited, inter alia, the “knowing possession,” in prison,

“of ‘any controlled substances, the possession of which is prohibited by

Division 10 (commencing with Section 11000) of the Health and Safety

Code.’” 925 F.3d at 1040 (quoting CAL. PENAL CODE § 4573.6 (2007)).

We held that, in light of § 4573.6’s use of the plural term “substances”—

which affirmatively indicated that a single possession of multiple

substances counted as only one offense—as well as California caselaw

explicitly endorsing that view, § 4573.6 was not divisible as to the

“controlled substances” element. Id. at 1040–41. For the reasons we

have explained, the statute at issue here is comparable to the ones

addressed in Martinez-Lopez, Tejeda, and Ocampo-Estrada, and is

dissimilar to the one discussed in Graves. Martinez-Lopez and its

progeny therefore control this case.

16 LAZO V. WILKINSON

2

Having concluded that § 11350 is divisible as to the

controlled substance, we may consult “a limited set of

documents ‘to determine which statutory phrase was the

basis for the conviction.’” Martinez-Lopez, 864 F.3d at 1043

(quoting Descamps, 570 U.S. at 263). Specifically, the

documents we may consider include “the charging

document, the terms of a plea agreement, the transcript of

colloquy between the judge and the defendant in which the

factual basis for the plea was confirmed by the defendant,

and comparable judicial records.” Coronado v. Holder,

759 F.3d 977, 985 (9th Cir. 2014). Here, the BIA relied on

the charging documents and the transcript of the guilty-plea

colloquy in Lazo’s California criminal case. All of these

documents unambiguously establish that Lazo’s conviction

was for possession of “cocaine.” And, as noted earlier, see

supra at 6–7, cocaine is a federally controlled substance

under the CSA. See 21 U.S.C. § 812(c), sched. II(a)(4).

Therefore, Lazo’s conviction under § 11350 is a violation of

law “relating to a controlled substance” as defined in the

CSA, and that renders him removable under INA

§ 237(a)(2)(B)(i). See Mellouli, 575 U.S. at 813.

Accordingly, we DENY Lazo’s petition for review.