FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO MADRIGAL-BARCENAS, AKA

Juan Reynosa-Varsenas,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 10-72049

B.I.A. No.

A088-914-486

OPINION

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.

Petitionerwas 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); LuuLe 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 threejudge 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.