UNITED STATES COURT 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 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 25, 2015

Elisabeth A. Shumaker 

Clerk of Court
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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 
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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 

 
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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