UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JUAN MANUEL TORRESLEDESMA, Petitioner,

v. LORETTA E. LYNCH, United States Attorney General, * Respondent. Nos. 14-9562 & 14-9603 (Petitions for Review)

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 contro lled dangerous subs tance is kept. See Okla. Stat. Ann. tit. 63, § 2-404. Based on this c onviction, 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 decide d the appeal based on the briefs. Our order and judgment does not constitute bi nding precedent except under the doctrines of law of the case, res judicata , and collateral estoppel. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - because the conviction involved an ag gravated 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-L edesma sought reconsideration by the Board. When that effort proved unsuccessful, he filed two petitions for review, one addr essing 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 cat egorical approach. This approach ignores the petitioner’s actual conduct , focusing instead on the minimu m needed for a conviction under state law. Ibarra v. Holder , 736 F.3d 903, 907 (10th Cir. 2013). Applying this appr oach, the Board concluded that violation of the Oklahoma law would alwa ys constitute an aggr avated felony and a violation involving a controlled substance. In reviewing that determination, we enga ge in de novo review. Barrera-Quintero v. Holder , 699 F.3d 1239, 1243 (10th Cir. 2012). Applying de novo review, we reve rse because the Bo ard should not have used a categorical approach. Section 2-404 has two subsections. Subsection A makes certain activities un lawful, and Subsection B provides two forms of punishment: (1 ) a civil fine and (2) a felony conviction. The existence of two different penalt ies makes § 2-404 “divisible.” Descamps- 3 - v. United States , __ U.S. __, 133 S. Ct. 2276, 2281 (2013). One penalty would involve a felony conviction, and the othe r penalty would not. Because the state statute was divisibl e, the Board had to use a modified categorical approach. Ibarra , 736 F.3d at 907. The Bo ard 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 whet her the conviction involved a felony or a civil fine. The Board ap peared to assume the conviction involved a fe lony without actually deci ding the issu e. Without an agency determination in the first instance, we must reverse and remand. See Mena-Flores v. Holder , 776 F.3d 1152, 1158 (10t h Cir. 2015) (stating it would be inappropriate for this c ourt to make new factual findings); Niang v. Gonzales , 422 F.3d 1187, 1197 (10th Cir. 2005) (s tating that the court should not assume the role of the Board of Immigr ation Appeals, but should leave d ecisions for the Boar d to decide in th e first instance). In these circumstances, the Court gr ants 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- 4 - 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