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Matter of Mikhail Petrovich DIKHTYAR, Respondent

Decided January 22, 2021

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Section 58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a

controlled substance, is divisible with respect to the identity of the specific “controlled 

substance” involved in a violation of that statute.

FOR RESPONDENT: Tilman D. Jacobs, Esquire, Westminster, Colorado

FOR THE DEPARTMENT OF HOMELAND SECURITY: Sunika Pawar, Assistant 

Chief Counsel

BEFORE: Board Panel: HUNSUCKER and PETTY, Appellate Immigration Judges;

MORRIS, Temporary Appellate Immigration Judge.

HUNSUCKER, Appellate Immigration Judge:

In a decision dated January 16, 2020, an Immigration Judge terminated 

the removal proceedings against the respondent. The Department of 

Homeland Security (“DHS”) has appealed from that decision. The 

respondent opposes the appeal.1 The appeal will be sustained, the removal 

proceedings will be reinstated, and the record will be remanded to the 

Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a lawful permanent resident of the United States.2 On

April 12, 2019, he was convicted of possession of a controlled substance in 

violation of section 58-37-8(2)(a)(i) of the Utah Code, and he received a 

suspended sentence of 365 days of incarceration for this offense. Based on 

this conviction, the DHS charged him with removability under section 

1 The respondent’s motion to accept a supplemental appellate brief is granted.

2 In the notice to appear, the DHS alleged that the respondent is a native and citizen of

the former Soviet Union. We take administrative notice that the Soviet Union no longer 

exists. See 8 C.F.R. § 1003.1(d)(3)(iv) (2020) (providing that we may take administrative 

notice of “commonly known facts”). However, the Immigration Judge terminated removal 

proceedings before determining the respondent’s country of citizenship, and, in light of our

disposition, we need not reach this issue.
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237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1227(a)(2)(B)(i) (2018), as an alien convicted of violating a law relating to 

a controlled substance.

The Immigration Judge terminated the respondent’s removal proceedings

after concluding that the DHS had not established that his Utah offense was 

a predicate for his removal under section 237(a)(2)(B)(i) of the Act. On 

appeal, the DHS challenges the Immigration Judge’s conclusion and argues 

that the respondent’s Utah drug conviction is one for a violation of a law 

relating to a controlled substance under the Act.3 Whether the respondent’s 

State conviction renders him removable is a question of law, which we 

review de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020).

II. ANALYSIS

Section 237(a)(2)(B)(i) of the Act renders the respondent removable if he 

has been convicted of a “violation of . . . any law or regulation of a State . . .

relating to a controlled substance,” as defined in the Federal Controlled

Substances Act (“CSA”). To determine whether the respondent’s Utah drug

offense renders him removable under this provision, we employ the 

“categorical approach” to determine whether the elements of his Utah

offense match those of the “generic” Federal definition set forth at section 

237(a)(2)(B)(i). Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). To 

categorically fit within this generic definition, the respondent’s conviction 

must have necessarily involved, as an element, a substance listed under the 

CSA. See Mellouli v. Lynch, 135 S. Ct. 1980, 1991 (2015); Matter of P-B-B-,

28 I&N Dec. 43, 45–46 (BIA 2020).

However, if the respondent’s State statute of conviction is categorically 

overbroad, we must consider whether it is divisible—that is, whether it “sets

out one or more elements of the offense in the alternative.” Descamps 

v. United States, 570 U.S. 254, 257 (2013); see also Johnson v. Barr, 967 

F.3d 1103, 1107 (10th Cir. 2020). If the statute is divisible, we may employ

a modified categorical approach, which permits us to examine the

respondent’s record of conviction to determine “what crime, with what 

elements, [he] was convicted of.” Mathis v. United States, 136 S. Ct. 2243, 

2249 (2016); see also Johnson, 967 F.3d at 1107.

3 We disagree with the respondent’s contention that the DHS waived its appellate 

arguments regarding his removability under section 237(a)(2)(B)(i) by not raising these 

arguments before the Immigration Judge. The DHS charged him with being removable 

under this provision and submitted evidence in support of this charge. It properly 

challenges on appeal the Immigration Judge’s determination that the respondent’s Utah

offense does not render him removable under section 237(a)(2)(B)(i) of the Act. 
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At the time of the respondent’s conviction, section 58-37-8(2)(a) of the 

Utah Code provided, in relevant part, that

It is unlawful:

(i) for any person knowingly and intentionally to possess or use a controlled 

substance analog or a controlled substance . . . .

Sections 58-37-8(2)(b) and (d), in turn, provided that

(b) Any person convicted of violating Subsection (2)(a)(i) with respect to:

(i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree 

felony; or

(ii) a substance classified in Schedule I or II, or a controlled substance analog, is 

guilty of a class A misdemeanor on a first or second conviction, and on a third or 

subsequent conviction is guilty of a third degree felony.

. . . .

(d) Any person who violates Subsection (2)(a)(i) with respect to all other controlled 

substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in 

Section 58-37-4.2, or marijuana, is guilty of a class B misdemeanor. . . .

(Emphasis added.) Because the respondent was convicted of a class 

A misdemeanor, the Immigration Judge found that he was convicted of 

possessing a schedule I or II controlled substance, or analog, under section 

58-37-8(2)(b)(ii).

It is undisputed that the respondent’s conviction for a class 

A misdemeanor under sections 58-37-8(2)(a)(i) and (b)(ii) of the Utah Code 

does not categorically fit within the definition of a controlled substance 

violation under section 237(a)(2)(B)(i) of the Act because, at all relevant 

times, schedules I and II of the Utah controlled substances schedules

criminalized the possession of substances that are not included in the CSA. 

See Johnson, 967 F.3d at 1106–07; Matter of P-B-B-, 28 I&N Dec. at 46. It

is additionally undisputed that the statute of conviction is divisible, in part, 

because sections 58-37-8(2)(b) and (d) of the Utah Code, the relevant penalty 

provisions of the statute, mete out different punishments for violating section 

58-37-8(2)(a)(i), depending on the circumstances underlying a particular

violation. See Mathis, 136 S. Ct. at 2256 (“If statutory alternatives carry 

different punishments, then . . . they must be elements.”); Matter of P-B-B-,

28 I&N Dec. at 47. 

However, the parties disagree as to whether the Utah statute is divisible 

with respect to the identity of the particular controlled substance possessed 

in a violation of section 58-37-8(2)(a)(i). In other words, the issue in this 

case is whether the identity of the specific controlled substance involved in

a violation of that provision is an “element” of that offense or merely an

alternative “means” of committing the crime. Mathis, 136 S. Ct. at 2253
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(distinguishing between statutory “elements” and the “alternative means of 

fulfilling” one or more of those elements).

“Elements ‘are the constituent parts of a crime’s legal definition’ that ‘the 

prosecution must prove’ and ‘what the jury must find beyond a reasonable 

doubt to convict the defendant.’” Johnson, 967 F.3d at 1107 (quoting 

Mathis, 136 S. Ct. at 2248). “Means,” by contrast, merely describe the 

various ways by which a defendant may “satisfy[] a single element.” Id.

(quoting Mathis, 136 S. Ct. at 2249, 2251).

The Immigration Judge found, and the respondent argues, that to establish 

a class A misdemeanor conviction under sections 58-37-8(2)(a)(i) and (b)(ii), 

the prosecution must prove only, and a jury need only find, that a defendant 

possessed a “controlled substance” under “Schedule I or II” of Utah’s 

controlled substances schedules, or “a controlled substance analog” under 

these schedules—regardless of the specific substance possessed. In the 

Immigration Judge’s view, these alternative schedules are alternative 

elements that render the statute divisible, but the identity of the specific 

substance listed under these schedules is merely an alternative “means” of

satisfying these elements.

At the time of the respondent’s conviction, schedule I of Utah’s

controlled substances schedules listed the substance etizolam, but the CSA 

did not. Compare Utah Code Ann. § 58-37-4(2)(a)(i)(FF) (West 2019), with 

21 C.F.R. § 1308.11 (2019). Accordingly, the Immigration Judge found that 

the respondent’s Utah statute of conviction was overbroad and, because it 

was indivisible with respect to the identity of the specific substance 

underlying his offense, his conviction under this statute did not render him 

removable under section 237(a)(2)(B)(i) of the Act. 

In support of her conclusion, the Immigration Judge cited Arellano 

v. Barr, 784 F. App’x 609 (10th Cir. 2019). In that unpublished case, the 

court held that an alien’s conviction for possession of a controlled substance 

listed in schedule V of Colorado’s controlled substances schedules was a 

conviction for an offense relating to a controlled substance under section 

212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2018). 4

Because the alien’s statute of conviction provided different punishments

depending on what schedule the drug possessed was listed in, the court 

concluded that the five alternative schedules under Colorado law were

alternative elements that rendered the statute divisible. See id. at 613 

(concluding that “the schedule the substance is listed in—not the substance 

itself—ultimately drives a court’s determination of . . . the appropriate 

punishment. In other words, the schedule is the element the jury necessarily 

has to find . . . .”). Nevertheless, since all of the substances listed in 

4 For our purposes, sections 212(a)(2)(A)(i)(II) and 237(a)(2)(B)(i) of the Act are 

materially identical. See Matter of Voss, 28 I&N Dec. 107, 108 n.3 (BIA 2020).
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schedule V of Colorado’s controlled substances schedules were listed under 

the CSA, the court concluded that the alien’s offense was a controlled 

substance violation under the Act.

After the Immigration Judge rendered her decision, the United States 

Court of Appeals for the Tenth Circuit, in whose jurisdiction this case arises, 

favorably cited Arellano in a precedential decision. See Johnson, 967 F.3d 

at 1109 (finding Arellano to be persuasive authority). In that decision, the 

court concluded that an alien’s conviction for possession of a schedule II 

controlled substance under a separate Colorado drug statute was not a 

conviction for a controlled substance violation under section 237(a)(2)(B)(i) 

of the Act. The court reached this conclusion after analyzing the text of the 

Colorado statute as well as relevant State jury instructions and case law and 

determined that “the schedule of the controlled substance is an element, 

while the specific identity of the ‘substance listed in schedule . . . II’ is a 

‘means’ to satisfy that element.” Id. at 1108; see also id. at 1107–10.

Because schedule II of Colorado’s controlled substances schedules listed a 

controlled substance that was not listed in the CSA, the court held that the

alien’s conviction was not a predicate for his removal. 

Here, we reach a different conclusion than the Immigration Judge. We 

acknowledge the above case law from the Tenth Circuit interpreting

Colorado drug laws. However, after reviewing the language of section 

58-37-8(2)(a)(i) of the Utah Code, relevant Utah jury instructions and case 

law, as well as the respondent’s record of conviction, we conclude that the

identity of the specific controlled substance underlying a violation of section 

58-37-8(2)(a)(i) is an “element” of that statute, rather than a mere “means”

of violating it. See id. at 1107–10 (looking to these resources in determining

the elements of a statute); Matter of P-B-B-, 28 I&N Dec. at 47–49

(examining these same resources and the alien’s record of conviction in

discerning the elements of a statute).

A. Statutory Language

The plain language of section 58-37-8(2)(a)(i) of the Utah Code metes 

out different punishments depending on the circumstances underlying a 

violation, including the identity of the controlled substance possessed. See 

State v. Robinson, 254 P.3d 183, 189–90 (Utah 2011) (concluding that the 

Utah Legislature intended to impose different penalties for violations of

section 58-37-8, depending on the type of controlled substance involved).

For example, an individual convicted of possessing marijuana, a

schedule I controlled substance under Utah law, 5 may receive different 

5 See Utah Code Ann. § 58-37-4(2)(a)(iii)(S) (defining marijuana as a schedule I 

controlled substance).
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punishments under this statute, depending on the amount of marijuana 

possessed and the individual’s prior criminal history. If that individual had 

been convicted of possessing 100 pounds or more of marijuana, his 

conviction would be treated as a second degree felony under section

58-37-8(2)(b)(i) of the Utah Code. However, if this individual was convicted 

of possessing less than that amount of marijuana, and it was his third or 

subsequent offense, his conviction would be treated as a third degree felony.

See Utah Code Ann. § 58-37-8(2)(b)(ii). But if it was only his first or second 

conviction, it would be treated as a class A misdemeanor. See id.; cf. State 

v. Martinez-Castellanos, 440 P.3d 896, 905–06 (Utah Ct. App. 2019) 

(vacating a third degree felony sentence for possession of hydrocodone under

section 58-37-8 and remanding for resentencing the offense as a class 

A misdemeanor under section 58-37-8(2)(b)(ii)). Separately, we also note 

that, under section 58-37-8(2)(d) of the Utah Code, a person is guilty of a 

class B misdemeanor if he possessed any other controlled substance not 

included under subsections (2)(b)(i) or (ii), including a substance listed in 

section 58-37-4.2 (which, at the time of the respondent’s conviction listed

78 different substances), or marijuana.

Thus, the plain language of section 58-37-8 reflects that penalties for drug 

offenses under this statute are not based simply on the schedule of the 

controlled substance involved in an offense. Rather, Utah must prove, and a 

jury must make findings regarding, a defendant’s criminal history and the 

identity and the amount of the controlled substance possessed to determine 

whether he was convicted of a second degree felony, third degree felony, a 

class A misdemeanor, or a class B misdemeanor. We therefore conclude that 

an element of section 58-37-8 is the identity of the specific controlled 

substance involved in a violation of that statute. See Mathis, 136 S. Ct. 

at 2256.

B. Jury Instructions

In addition to the statutory language, we rely on relevant Utah jury 

instructions to determine whether the statute is divisible with respect to the

identity of the controlled substance involved in the respondent’s offense. See 

id. at 2249 (providing that we may look to jury instructions to determine the 

elements of a statute). The jury instructions for the respondent’s statute of 

conviction indicate that the specific substance involved is an element of the 

offense. These instructions provide, in relevant part:

(DEFENDANT’S NAME) is charged [in Count ___] with committing Possession of 

a Controlled Substance [on or about (DATE)]. You cannot convict [him] [her] of 

this offense unless, based on the evidence, you find beyond a reasonable doubt each 

of the following elements:
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1. (DEFENDANT’S NAME);

2. Intentionally and knowingly;

3. Possessed (NAME OF CONTROLLED SUBSTANCE/COUNTERFEIT 

SUBSTANCE), a schedule [I] [II] [III] [IV] [V] [controlled substance] [counterfeit 

substance] [; and]

4. [The defense of ______ does not apply].

Model Utah Jury Instructions, Second Edition, CR1203 (emphasis added). 

In State v. Mackin, No. 061401021, 2008 WL 4411683, at Instruction 4

(Utah Dist. Ct. 2008) (Jury Instruction), a Utah District Court replaced the

phrase “NAME OF CONTROLLED SUBTANCE/COUTERFEIT 

SUBSTANCE” in these instructions with the name of the specific substance 

underlying the charge—namely, “Methamphetamine, a Schedule II

controlled substance”—and identified this specific substance as one of the 

“essential elements” that the jury had to “find beyond a reasonable doubt.”6

Cf. State v. Nelson, 253 P.3d 1094, 1095 (Utah Ct. App. 2011) (specifying in 

jury instructions relating to a charge of possession with intent to distribute 

that the underlying substance was “Cocaine, a Schedule II controlled 

substance”). Because these instructions require a jury to find the specific 

substance underlying a violation of section 58-37-8(2)(a)(i) beyond a 

reasonable doubt, they differ from the jury instructions for the Colorado 

statute at issue in Johnson, 967 F.3d at 1109, which required only that the 

jury find “(1) [t]hat the defendant, (2) in the State of Colorado, at or about 

the date and place charged, (3) knowingly, (4) possessed a controlled 

substance.”

C. Utah Case Law

Although we have found no Utah court opinion that directly answers 

whether the identity of a particular controlled substance is an element or a 

means, we find it significant that Utah “has prosecuted as separate offenses 

a single act” involving the possession of “multiple controlled substances.”

Matter of Gonzalez Lemus, 27 I&N Dec. 612, 614 (BIA 2019). In State 

6 The jury instructions in Mackin indicate that the jury may be instructed a second time 

about the identity and schedule of the controlled substance possessed after they have found 

all of the elements of the crime of possession of a controlled substance. See Mackin, 2008 

WL 4411683, at Instruction 6 (reiterating under a subsequent instruction that 

“Methamphetamine is a Schedule II controlled substance”). However, this additional 

instruction does not detract from the fact that a jury must find beyond a reasonable doubt 

the identity of the specific drug possessed, and its schedule, in order to sustain a conviction 

under section 58-37-8(2)(a)(i). We are therefore not persuaded by the respondent’s 

argument that this additional instruction renders the identity of the substance possessed a 

mere “means” of violating the statute, rather than an “element” of the crime.
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v. Karren, 438 P.3d 18, 19–21 (Utah Ct. App. 2018), the Utah Court of 

Appeals upheld a defendant’s conviction for two counts of possession of a 

controlled substance under section 58-37-8(2)(a)(i) where he was arrested 

after methamphetamine and marijuana were discovered in his backpack.

Similarly, in State v. Ashcraft, 349 P.3d 664, 667 (Utah 2015), the Supreme 

Court of Utah upheld a conviction for six counts of possession with intent to 

distribute, where each count related to a separate controlled substance.7

These cases indicate that “‘the elements of proof required as to’ an offense 

involving one drug ‘are not the same as those essential’ to proving an offense 

involving a different drug.” Matter of P-B-B-, 28 I&N Dec. at 48 (quoting 

Matter of Gonzalez Lemus, 27 I&N Dec. at 614–15). The respondent has not 

explained how, given the prohibition against double jeopardy, a defendant 

could be convicted of multiple counts of possession of a controlled substance

where the defendant committed a single act of possession involving separate 

substances, if the identity of the specific controlled substance possessed was 

simply an alternative means of committing the offense, rather than an 

element of section 58-37-8(2)(a)(i). See id. at 48–49.

D. Record of Conviction

Finally, under Mathis, 136 S. Ct. at 2256–57, we may “peek” at the 

respondent’s record of conviction “for the sole and limited purpose of 

determining whether [the specific controlled substance is an] element[] of 

the offense.” The respondent’s criminal information charged him with 

violating section 58-37-8(2)(a)(i) for “knowingly and intentionally 

possess[ing] or us[ing] a controlled substance analog or a controlled 

substance, to-wit: methamphetamine, a Schedule II controlled substance.”8

The fact that the indictment “referenc[es] one alternative [controlled 

substance] to the exclusion of all others,” supports our conclusion that the 

identity of the controlled substance is an element of section 58-37-8(2)(a)(i). 

Id. at 2257 (stating that “an indictment . . . could indicate, by referencing one 

alternative term to the exclusion of all others, that the statute contains a list 

of elements, each one of which goes toward a separate crime”); see also 

Matter of P-B-B-, 28 I&N Dec. at 49–50. The respondent’s guilty plea 

likewise states that one of the “specific elements” of his offense was that he 

7 Although Ashcraft dealt with a different controlled substance provision, namely, section 

58-37-8(1)(a)(iii) of the Utah Code, we find it instructive because, like the respondent’s 

statute of conviction, section 58-37-8(1) metes out different punishments depending on,

among other things, a defendant’s criminal history and the identity of the controlled 

substance possessed with the intent to distribute. See Utah Code Ann. § 58-37-8(1)(b). 

8 We may take administrative notice of the contents of the respondent’s record of 

conviction. See, e.g., Matter of P-B-B-, 28 I&N Dec. at 49 n.8. 
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“possessed methamphetamine.” See Mathis, 136 S. Ct. at 2249, 2258

(providing that we may rely on a plea agreement to determine a statute’s 

elements). Accordingly, the respondent’s record of conviction, specifically 

the relevant criminal information and guilty plea, reflects that the identity of 

the specific controlled substance possessed in violation of section 

58-37-8(2)(a)(i) is an element of that crime.

III. CONCLUSION

The statute is therefore divisible with respect to the identity of the specific 

controlled substance the respondent possessed, and we may apply the 

modified categorical approach. See Matter of P-B-B-, 28 I&N Dec. at 50. 

As noted, the respondent’s record of conviction establishes that he was 

convicted of possessing methamphetamine, a federally controlled substance

under 21 U.S.C. § 812, schedule III(a)(3) (2018). Thus, the respondent’s

conviction for possession of a controlled substance under section

58-37-8(2)(a)(i) renders him removable as charged under section 

237(a)(2)(B)(i) of the Act. The Immigration Judge therefore erred when she 

terminated his removal proceedings. Accordingly, the DHS’s appeal is 

sustained, the removal proceedings are reinstated, and the record is remanded 

to give the respondent an opportunity to apply for any relief for which he 

may be eligible.

ORDER: The appeal of the Department of Homeland Security is 

sustained, the decision of the Immigration Judge is vacated, and the removal 

proceedings are reinstated. 

FURTHER ORDER: The record is remanded to the Immigration 

Judge for further proceedings consistent with the foregoing opinion and for 

the entry of a new decision.