No. 22-1655 ___________________________

Humberto Rincon Barbosa,

lllllllllllllllllllllPetitioner,

v.

Merrick B. Garland, Attorney General of the United States,

lllllllllllllllllllllRespondent. ____________

Petition for Review of an Order of the Board of Immigration Appeals ____________

Submitted: November 17, 2022 Filed: June 14, 2023 ____________ Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges. ____________ COLLOTON, Circuit Judge.

Humberto Rincon Barbosa, a citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals. The Board concluded that Rincon’s prior conviction in Kansas for possession of methamphetamine made him removable from the United States. We conclude that Rincon is removable, and therefore deny the petition for review. Rincon was born in Mexico and became a lawful permanent resident of the United States in 2016. In December 2018, he pleaded guilty in Kansas state court to committing two offenses: possession of methamphetamine, in violation of Kan. Stat. Ann. § 21-5706(a), and domestic battery, in violation of Kan. Stat. Ann. § 21- 5414(a)(2).

The government initiated removal proceedings against Rincon based on his conviction for a “controlled substance offense.” Under 8 U.S.C. § 1227(a)(2)(B)(i), an alien is subject to removal if he has been convicted of violating “any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” Section 802 of Title 21 defines “controlled substance” as “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of [21 U.S.C. § 812].” 21 U.S.C. § 802(6). Methamphetamine is one such drug. 21 U.S.C. § 812 Sch. III(a)(3).

When the government seeks to remove an alien based on a state drug conviction, the adjudicator must use the “categorical approach” to determine whether the elements of the state crime fit within the elements of the removable offense defined by federal law. Mellouli v. Lynch, 575 U.S. 798, 805 (2015). If the state statute encompasses the same conduct or lesser conduct than the removable offense, then the alien is removable. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). If the state statute criminalizes more conduct than the removable offense, then it is overbroad. Descamps v. United States, 570 U.S. 254, 261 (2013). If the state statute is overbroad but contains multiple, alternative elements that create different crimes, then it is “divisible,” and a modified categorical approach applies. Moncrieffe, 569 U.S. at 191. The adjudicator may then determine the alien’s offense of conviction by examining a limited class of judicial records. Id. If the elements of the offense of conviction fit within the removable offense, then the alien is removable.

-2- In the immigration court, Rincon argued that the offense defined in § 21- 5706(a) is broader than the controlled substance offense defined in federal law, and that the state statute is also indivisible. On that basis, he maintained that his Kansas drug conviction was not a basis for removal. The immigration judge agreed that the Kansas statute was overbroad, but concluded that it was a divisible statute that included “multiple crimes, defined by multiple controlled substances.” Applying the modified categorical approach, the immigration judge determined that the elements of Rincon’s conviction for possession of methamphetamine in Kansas fit within the elements of the federal controlled substance offense for possession of