NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELISIO ATENIA LORENZO, 

Petitioner, 

 v. 

MATTHEW G. WHITAKER, Acting 

Attorney General, 

Respondent.

No. 15-70814 

Agency No. A038-467-916 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 15, 2018

Pasadena, California

Before: THOMAS, Chief Judge, and FISHER and BEA, Circuit Judges.**

Elisio Atenia Lorenzo petitions for review of the decision of the Board of 

Immigration Appeals (BIA) denying his motion to terminate his removal 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** This case was submitted to a panel that included Judge Stephen 

Reinhardt. Following Judge Reinhardt’s death, Judge Bea was drawn by lot to 

replace him. Ninth Circuit General Order 3.2h. Judge Bea has reviewed all case 

materials.

FILED

JAN 17 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

proceedings and ordering him removed. We have jurisdiction under 8 U.S.C. § 

1252, and – on the record before us in this case – we grant the petition and 

remand.

1

I

In 2013, Lorenzo pled nolo contendere to possession of methamphetamine, 

in violation of California Health and Safety Code § 11378, and transportation of 

methamphetamine, in violation of California Health and Safety Code § 11379(a). 

The record of conviction does not identify the type of methamphetamine involved, 

and, under California law, “methamphetamine” is broadly defined to include 

“[m]ethamphetamine, its salts, isomers, and salts of its isomers.” Id. § 

11055(d)(2). Health and Safety Code § 11033, in turn, provides that the term 

“isomer,” unless otherwise defined, “includes optical and geometrical 

(diastereomeric) isomers.”

The Department of Homeland Security initiated removal proceedings against 

Lorenzo based on his 2013 state convictions. The notice to appear charged 

Lorenzo with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), on the ground that 

his § 11379(a) conviction constituted an aggravated felony under 8 U.S.C. § 

1101(a)(43)(B). Alternatively, and as relevant here, the notice to appear charged 

 

1 We also deny the government’s petition for panel rehearing and 

motion for judicial notice for the reasons discussed below.
3 

Lorenzo with removability under 8 U.S.C. § 1227(a)(2)(B)(i), on the ground that 

his §§ 11378 and 11379(a) convictions constituted violations of state law “relating 

to a controlled substance.”

Lorenzo moved to terminate removal proceedings, contending his 

methamphetamine convictions did not necessarily involve a controlled substance 

as defined by federal law. Specifically, he argued the definition of 

methamphetamine under California law is broader than the definition of 

methamphetamine under the federal Controlled Substances Act (CSA), because the 

CSA’s definition includes only optical isomers of methamphetamine, whereas 

California law includes both optical and geometric isomers of methamphetamine.

An immigration judge (IJ) denied Lorenzo’s motion and ordered him 

removed, concluding that Lorenzo’s convictions qualified as controlled substance 

offenses under 8 U.S.C. § 1227(a)(2)(B)(i). The BIA adopted and affirmed the IJ’s 

decision under Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), while also 

providing its own analysis. Lorenzo timely petitioned for review.

II

We review the BIA’s determination of purely legal questions de novo, see

Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003), including 

whether a particular conviction under state law is a removable offense, see

Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016), and whether a 
4 

statute is divisible, see United States v. Martinez-Lopez, 864 F.3d 1034, 1039-40

(9th Cir. 2017) (en banc) (citing Almanza-Arenas v. Lynch, 815 F.3d 469, 477 (9th 

Cir. 2016) (en banc)).

We use “a three-step analysis” to determine whether a state conviction 

qualifies as a controlled substance offense under federal law. See id. at 1038.

First, we determine whether state law bars “the same amount of or less conduct 

than” federal law. Id. (quoting United States v. Hernandez, 769 F.3d 1059, 1062 

(9th Cir. 2014)). If so, then the state conviction is a categorical match, and the 

state conviction is a ground for removability. See id. If the state law encompasses 

more conduct than the federal law, however, we proceed to the second step and

determine whether the state law is divisible – i.e., whether the overly broad 

element sets out alternative means of committing a single crime or alternative 

elements of committing two or more distinct crimes. See id. at 1038-39. At step 

three, if the statute is divisible, we employ the modified categorical approach, 

where we may look to documents in the record of conviction, but not the particular 

facts underlying the conviction, to determine whether the conviction qualifies. See

Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). If the statute is overbroad 

and not divisible, then the conviction cannot be a ground for removal. See id. at 

2248-49.

III
5 

A

Applying the first step in this analysis here, we conclude the definition of 

“methamphetamine” applicable to convictions under California Health & Safety 

Code §§ 11378 and 11379(a) is broader than the definition of methamphetamine 

under the federal Controlled Substances Act, 21 U.S.C. § 812. The California

definition includes both optical and geometric isomers of methamphetamine, 

whereas the federal definition includes only optical isomers of methamphetamine. 

Compare Cal. Health & Safety Code § 11033, with 21 U.S.C. §§ 802(14), 812 

Schedule II(c), Schedule III(a)(3). Accordingly, California law is facially 

overbroad. See Martinez-Lopez, 864 F.3d at 1038.

Because this mismatch between the federal and state statutes is apparent on 

the face of the statutes, such that no rational interpretation of either statute would 

reconcile the two, Lorenzo is not required to “point to his own case or other cases 

in which the state courts in fact did apply the statute in the special (nongeneric) 

manner for which he argues.” Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 

(2007); see United States v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc) 

(“[W]hen ‘[t]he state statute’s greater breadth is evident from its text,’ a defendant 

may rely on the statutory language to establish the statute as overly inclusive.” 

(citation omitted)); United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en 

banc) (“Where, as here, a state statute explicitly defines a crime more broadly than 
6 

the generic definition, no ‘legal imagination,’ is required to hold that a realistic 

probability exists that the state will apply its statute to conduct that falls outside the 

generic definition of the crime. The state statute’s greater breadth is evident from 

its text.” (citation omitted)), abrogated on other grounds by United States v. Stitt, 

139 S. Ct. 399 (2018). 

In its petition for panel rehearing, the government contends the facial 

overbreadth in California law is of no significance because geometric isomers of 

methamphetamine do not in fact exist. The government also asks us to take 

judicial notice of evidence presented in a different case to support that new 

assertion. We reject these entreaties. First, “[a]s a general rule, we will not 

consider issues that a party raises for the first time in a petition for rehearing,” 

United States v. Mageno, 786 F.3d 768, 775 (9th Cir. 2015) (quoting Varney v. 

Sec’y of Health & Human Servs., 859 F.2d 1396, 1397 (9th Cir. 1988)), or during 

oral argument, see In re Pac. Pictures Corp., 679 F.3d 1121, 1130 (9th Cir. 2012). 

Second, our review generally is limited to the information in the administrative 

record. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc). The 

government could have raised its argument about theoretical impossibility in this 
7 

court, but it did not timely do so. We do not foreclose the government from 

presenting its new argument or new evidence in another case.2

B

Turning to the second step in the categorical analysis, we conclude that the 

methamphetamine element applicable to a conviction under Health & Safety Code 

§§ 11378 or 11379(a) is not divisible, because the different varieties of 

methamphetamine covered by California law are alternative means of committing 

a single crime rather than alternative elements of separate crimes. See People v. 

Schroeder, 70 Cal. Rptr. 491, 499 (Ct. App. 1968) (explaining that possession of 

different types of the same drug – e.g., different types of methamphetamine –

“would constitute a single offense” under California law); see also In re Adams, 

536 P.2d 473, 477 (Cal. 1975) (citing this aspect of Schroeder with approval). We 

therefore do not apply the modified categorical approach. See Mathis, 136 S. Ct. at

2248-49.

IV

 

2 The government’s petition for rehearing contends our decision 

violates the ordinary remand rule, see INS v. Orlando Ventura, 537 U.S. 12, 16 

(2002) (per curiam), because it finds in the first instance that geometric isomers of 

methamphetamine do in fact exist. Our decision, however, does not conclude that 

geometric isomers of methamphetamine exist; it concludes only that the record in 

this case does not show that they do not exist.
8 

In sum, Lorenzo’s methamphetamine convictions under California Health & 

Safety Code §§ 11378 and 11379(a) do not qualify as controlled substance 

offenses under 8 U.S.C. § 1227(a)(2)(B)(i). Accordingly, Lorenzo is not 

removable for the reasons stated by the BIA. Because the IJ and the BIA did not 

consider whether Lorenzo was removable on the ground that his Health & Safety 

Code § 11379(a) conviction constitutes an “illicit trafficking in a controlled 

substance” aggravated felony under 8 U.S.C. §§ 1101(a)(43)(B) and 

1227(a)(2)(A)(iii), we do not address that question. See Andia v. Ashcroft, 359 

F.3d 1181, 1184 (9th Cir. 2004) (“In reviewing the decision of the BIA, we 

consider only the grounds relied upon by that agency.”). If the BIA addresses the 

government’s aggravated felony theory on remand, it should consider whether that 

theory suffers from the same flaw as the government’s theory of removability 

under 8 U.S.C. § 1227(a)(2)(B)(i).

PETITION GRANTED; REMANDED.