7th Circuit tosses aggravated felony under ‘overbroad’ criminal statute  

Finding Indiana’s 2006 statute regarding methamphetamine criminalized more conduct than the corresponding federal law, the 7th Circuit Court of Appeals found an Indiana man’s conviction after pleading guilty to a drug charge was not an aggravated felony for purposes of deportation.

Jonathan Aguirre-Zuniga pleaded guilty to one count of dealing methamphetamine under Indiana Code section 35-48-4-1.1. The U.S. Department of Homeland Security subsequently sought to deport him to Mexico, asserting his conviction qualified as an aggravated felony and, therefore, he was subject for removal under 8 U.S.C. § 1227(a)(2)(A)(iii).

Aguirre-Zuniga filed a motion to terminate the proceedings. He argued his conviction did not qualify as an aggravated felony because the Indiana law is overbroad. When a state statute is broader than its federal counterpart, a conviction under the state law cannot trigger a noncitizen’s deportation.

Here, Aguirre-Zuniga asserted the Indiana statute criminalized optical, positional and geometric isomers of methamphetamine but the corresponding federal offense criminalized only optical isomers.

The immigration judge denied the motion to terminate and the Board of Immigration Appeals affirmed.

However, the 7th Circuit granted Aguirre-Zuniga’s petition to vacate the Board of Immigration Appeals’ decision in Jonathan Aguirre-Zuniga v. Merrick B. Garland, Attorney General of the United States, 21-1201.

The court found Aguirre-Zuniga’s conviction was not an aggravated felony because the statute defining “methamphetamine” is overly broad.

In reviewing the 2006 criminal code that Aguirre-Zuniga’s conviction falls under, the appellate panel noted the Legislature had just amended state statute to carve out methamphetamine crimes. But in the new law, the language classifying the drug in Schedule I or II was not included.

Aguirre-Zuniga maintained the 7th Circuit should refer to Schedule II because that is the only place in the Indiana Code that defines “methamphetamine.” Once there, he further argued the state’s use of the term “isomer” for methamphetamine is broader than the federal statute that covers only optical isomers.

The government countered that the Indiana Legislature’s omission of the language referencing the schedules in 2006 merely made the Indiana statute silent as to what isomers, if any, it criminalized. In the government’s view, because the Indiana law did not include an explicit reference to the schedules, the statute did not cover any isomers. Consequently, the statute was not broader than federal law.

The 7th Circuit found the argument unavailing.

“The government’s view, however, begs the question: How does Indiana law define ‘methamphetamine’? The government’s brief is mum on the issue. And, when asked at oral argument, the government responded that ‘meth means meth,’” Judge Candace Jackson-Akiwumi wrote for the court. “But that recursive logic does not comport with the chemistry. Methamphetamine itself is comprised of two optical isomers. If the Indiana Statute does not cover any isomers, it arguably would not reach methamphetamine itself. Such a view would render the Indiana Statute impotent — a criminal statute that criminalizes nothing. The government’s position would have us drive the Indiana Statute into a no man’s land. We decline to do so. The definition of methamphetamine from Schedule II proscribes the scope of the Indiana Statute.”

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