FELIX-FIGUEROA

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Cite as 29 I&N Dec. 157 (BIA 2025) 	Interim Decision #4112
Matter of Benjamin FELIX-FIGUEROA, Respondent
Decided July 30, 2025
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An Immigration Judge must apply the realistic probability test whenever a party asserts
that a State’s statutory definition of a controlled substance is broader than the Federal
definition of a controlled substance based on a textual mismatch regarding the isomers
of a particular controlled substance.
(2) Once DHS establishes the existence of a State drug conviction by clear and convincing
evidence, a respondent who argues that a State conviction is categorically overbroad
based on differing substance or isomer definitions has the burden of demonstrating a
realistic probability that the State prosecutes substances falling outside the Federal
definition of a controlled substance.
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Megan A. McLean, Assistant
Chief Counsel
BEFORE: 	Board Panel: 	MULLANE, HUNSUCKER, and GOODWIN, Appellate
Immigration Judges.
GOODWIN, Appellate Immigration Judge:
This case was last before the Board on December 15, 2023, when we
remanded the record to the Immigration Judge to further analyze whether the
respondent’s conviction for Possession of Dangerous Drugs for Sale under
section 13-3407 of the Arizona Revised Statutes was a controlled substance
violation. The Department of Homeland Security (“DHS”) now appeals the
Immigration 	Judge’s 	November 	27, 	2024, 	decision 	terminating 	the
respondent’s removal proceedings. 	The appeal will be sustained and the
record remanded.
I. PROCEDURAL HISTORY
The respondent was convicted in 2017 of Possession of Dangerous Drugs
for Sale, to wit, methamphetamine, under section 13-3407 of the Arizona
Revised 	Statutes. 	DHS 	charged 	him 	with 	removability 	under
section 237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1227(a)(2)(B)(i) (2018), for having been convicted of a “violation

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of . . . any law or regulation of a State . . . relating to a controlled substance
(as defined in section 102 of the Controlled Substances Act (21 U.S.C.
802)).” The Immigration Judge terminated removal proceedings, concluding
that the respondent was not removable as charged. 	DHS appealed, and on
December 15, 2023, we remanded the record to the Immigration Judge for
further factual findings and analysis.
On November 27, 2024, the Immigration Judge determined that the
inclusion 	of 	positional 	isomers 	rendered 	Arizona’s 	definition 	of
methamphetamine “clearly and unambiguously overbroad” as compared to
the Federal definition of a controlled substance. 	Thus, she concluded that
the respondent need not satisfy the realistic probability test to defeat the
charge of removability. In the alternative, the Immigration Judge determined
that 	DHS 	bore 	the 	burden 	of 	disproving 	any 	realistic 	probability 	of
prosecution and that its evidence showing that one of the positional isomers
of methamphetamine—phentermine—was separately controlled under both
Arizona and Federal law was insufficient to establish a categorical match
between the two definitions of methamphetamine. Concluding that DHS did
not 	satisfy 	its 	burden 	to 	establish 	the 	respondent’s 	removability, 	the
Immigration Judge again terminated removal proceedings.
II. 	ANALYSIS
In 	determining 	whether 	the 	respondent’s 	conviction 	under
section 13-3407 of the Arizona Revised Statutes is for a controlled substance
offense, we employ the categorical approach to determine whether the
respondent’s conviction necessarily involved a substance listed under the
Federal controlled substances schedules. 	See Matter of P-B-B-, 28 I&N
Dec. 43, 45–46 (BIA 2020). 	The Board has previously concluded that
section 13-3407 of the Arizona Revised Statutes is divisible as to the specific
“dangerous drug” involved and therefore the modified categorical approach
applies. 	Id. at 46–47. 	The respondent was convicted of possession of
methamphetamine.
Arizona’s statutory definition of a dangerous drug includes isomers
of 	methamphetamine, 	“whether 	optical, 	positional, 	or 	geometric.”1
1 	The United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case
arises, has previously affirmed a lower court’s determination based on unrebutted expert
testimony that “geometric” isomers of methamphetamine do not exist. See United States
v. Rodriguez-Gamboa, 972 F.3d 1148, 1151–52 (9th Cir. 2020). The parties agreed before
the Immigration Judge, however, that positional isomers do exist.

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Ariz. Rev. Stat. Ann. § 13-3401(6)(c)(xxxviii) (2017). 	In contrast, the
Federal statutory definition of a controlled substance also includes isomers
of methamphetamine, but the statutory text defines those isomers only as
“optical” 	isomers. 	21 	U.S.C. 	§§ 	802(14), 	812(c), 	Schedule 	II(c),
Schedule III(a)(3) (Supp. V 2017). 	Whether the respondent has been
convicted of a controlled substance offense rendering him removable as
charged 	is 	a 	legal 	question 	we 	review 	de 	novo. 	See 	8 	C.F.R.
§ 1003.1(d)(3)(ii) (2025).
A. 	The Realistic Probability Test and Isomers
The Supreme Court of the United States has stated that “there [must] be
‘a realistic probability, not a theoretical possibility, that the State would apply
its statute to conduct that falls outside the generic definition of a crime.’” See
Moncrieffe v. Holder, 569 U.S. 184, 206 (2013) (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)). The Supreme Court advised in
Moncrieffe that the test articulated in Duenas-Alvarez applies even where
there is apparent overbreadth between the Federal statute and its State
counterpart. 	See Moncrieffe, 569 U.S. at 205–06. 	Relying on the realistic
probability test, the Court in Moncrieffe rejected the argument that the
categorical approach would frustrate the enforcement of an aggravated
felony provision that refers to a Federal firearms statute because some States’
firearm laws lack the “antique firearm” exception in the Federal firearms
statute. Id. The Supreme Court noted that to satisfy the realistic probability
test, “[an alien] would have to demonstrate that the State actually prosecutes
the relevant offense in cases involving antique firearms.” Id. at 206. Circuit
courts have subsequently applied the realistic probability test in instances
where a State’s definition of a firearm is textually overbroad as compared
to 	the 	Federal 	definition. 	See, 	e.g., 	United 	States 	v. 	Aguilera-Rios,
769 F.3d 626, 635 (9th Cir. 2014) (concluding that the realistic probability
test was satisfied because California lacked an antique firearm exception and
“California does prosecute cases involving antique firearms”).
Relying on Moncrieffe, the Board has explained that “[e]ven if the
language of a 	statute 	is plain, its application may still be altogether
hypothetical and may not satisfy the requirement[] . . . [of demonstrating a
realistic probability] if the respondent cannot point to his own case or other
cases where the statute has been applied” to conduct falling outside the
generic definition. Matter of Navarro Guadarrama, 27 I&N Dec. 560, 567
(BIA 2019). 	As such, in Matter of Navarro Guadarrama, 27 I&N Dec.
at 567, the Board held:

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[W]here an alien has been convicted of violating a State drug statute that includes a
controlled substance that is not on the Federal controlled substances schedules, he or
she must establish a realistic probability that the State would actually apply the
language of the statute to prosecute conduct involving that substance in order to
avoid the immigration consequences of such a conviction.
The United States Court of Appeals for the Ninth Circuit, in whose
jurisdiction this case arises, has applied the realistic probability test in
comparing isomer differences between State and Federal drug definitions,
even when the State statute explicitly lists isomers not included in the Federal
definition. See United States v. Rodriguez-Gamboa, 972 F.3d 1148, 1153–55
(9th Cir. 2020). The Ninth Circuit observed that the California definition of
a 	controlled 	substance 	includes 	optical 	and 	geometric 	isomers 	of
methamphetamine whereas the Federal definition only includes optical
isomers. 	See id. at 1152. 	After explaining that the government had
established “geometric” isomers of methamphetamine do not exist, the Ninth
Circuit 	found 	‘“no 	realistic 	probability’ 	that 	. 	. 	. 	[the] 	California
methamphetamine statute . . . w[ould] be used to prosecute someone in
connection with geometric isomers of methamphetamine.” 	Id. at 1154.
Thus, despite the textual overbreadth, the Ninth Circuit found that the
California and Federal drug definitions were a categorical match. 	See id.
at 1154–55.
We recognize that the Ninth Circuit’s decision relied on the factual
impossibility of geometric isomers, distinguishing a Seventh Circuit case in
which “the government had not presented 	evidence that the apparent
overbreadth 	consisted 	entirely 	of 	impossible 	conduct.” 	Id. 	at 	1155.
However, we are not persuaded that factual impossibility is a requisite for
applying the realistic probability test to a State statute that on its face appears
to be overbroad as compared to the generic Federal definition of an offense.
See, e.g., Moncrieffe, 569 U.S. at 205–06; see also United States v. Turner,
47 F.4th 509, 522 (7th Cir. 2022) (distinguishing factual impossibility from
the realistic probability test and noting that the former “comes one step
before” the latter).
A statute’s textual overbreadth does not always unambiguously establish
that there is a realistic probability that the State would apply the statute to
conduct falling outside the Federal definition of an offense. 	See, e.g.,
United States v. Phifer, 909 F.3d 372, 381–85 (11th Cir. 2018) (discussing
the ambiguity of the term “positional isomer” within the Federal regulations).
For example, the Sixth Circuit recently concluded that although Michigan
law bans cocaine and its “stereoisomers” whereas the Federal controlled
substances schedule includes “cocaine, . . . optical and geometric isomers,”

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Michigan law did not cover more isomers of cocaine because the reference
to “geometric isomers” in the Federal definition included the “stereoisomers”
of 	cocaine 	controlled 	under 	Michigan 	law. 	United 	States 	v. 	Wilkes,
78 F.4th 272, 279–85 (6th Cir. 2023). 	Likewise, the Eleventh Circuit in
Chamu v. United States Attorney General, 23 F.4th 1325, 1331–33 (11th Cir.
2022), concluded that the alien did not satisfy his burden of proving that
Florida’s 	statutory 	definition 	of 	cocaine, 	which 	includes 	cocaine’s
“stereoisomers,” is overbroad as compared to the Federal definition, which
includes only “optical isomers and geometric isomers.”
Based on the foregoing, we conclude that an alien cannot establish that
his 	or 	her 	conviction 	is 	not 	categorically 	for 	a 	controlled 	substance
offense—and 	thereby 	eliminate 	the 	immigration 	consequences 	of 	the
conviction—by simply pointing to a State controlled substance definition
including a particular kind of isomer not included in the Federal definition.
See Matter of Navarro Guadarrama, 27 I&N Dec. at 567. 	Rather, an
Immigration Judge must apply the realistic probability test whenever a party
asserts that a State’s statutory definition of a controlled substance is broader
than the Federal definition of a controlled substance based on a textual
mismatch regarding the isomers of a particular controlled substance.
B. Burden of Proof for Realistic Probability Test
“[T]he INA assigns [DHS] the ‘burden’ of showing that the alien has
committed a [removable offense] . . . .” Pereida v. Wilkinson, 592 U.S. 224,
232 (2021); accord INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A) (2018).
Specifically, DHS must prove the “who, what, when, and where of a
conviction.” Pereida, 592 U.S. at 238–39.
The Supreme Court addressed burden allocations in the context of
criminal convictions in Pereida. Pereida dealt with an ambiguous conviction
record 	involving 	Nebraska’s 	categorically 	divisible 	attempted 	criminal
impersonation statute, which included four separate offenses, at least two of
which would trigger immigration consequences. 	Pereida, 592 U.S at
235–36. 	The evidence in the record of Mr. Pereida’s conviction was
ambiguous as to which crime he was convicted of committing. Id. at 229–30,
235–36. Because the case arose in the cancellation of removal context, the
Court held that Mr. Pereida had the burden to show that he had been
convicted 	under 	one 	of 	the 	subsections 	that 	would 	not 	constitute 	a
disqualifying offense. Id. at 236–37.

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Crucially, the Pereida Court distinguished Moncrieffe as addressing “the
question whether the minimum conduct needed to commit an alien’s known
offense of conviction categorically triggered adverse federal consequences”
and not “the threshold factual question [of] . . . which crime formed the basis
of the alien’s prior conviction.” 	Id. at 239. 	Pereida did not overturn the
Supreme Court’s instruction in Moncrieffe that once DHS has proven the
existence of a conviction that would render an alien removable, “to defeat
the categorical comparison,” the burden is on the alien “to demonstrate [a
realistic probability] that the State actually prosecutes the relevant offense”
in cases involving conduct falling outside the generic Federal definition.
Moncrieffe, 569 U.S. at 206.
Thus, we conclude that once DHS establishes the existence of a State drug
conviction by clear and convincing evidence, a respondent who argues that
a State conviction is categorically overbroad based on differing substance or
isomer definitions has the burden of demonstrating a realistic probability that
the State prosecutes substances falling outside the Federal definition of a
controlled substance. 	See Moncrieffe, 569 U.S. at 206; see also INA
§ 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A). 	The respondent cannot simply
point to the State (but not Federal) statutory control of a particular drug
isomer to defeat the categorical comparison to the Federal drug schedules.
See United States v. Vega-Ortiz, 822 F.3d 1031, 1035–36 (9th Cir. 2016)
(holding 	that 	a 	defendant 	claiming 	that 	the 	California 	definition 	of
methamphetamine was overbroad because the Federal schedule of controlled
substances excluded a particular product containing “L-meth” that was not
excluded from California’s definition would need to show a “realistic
probability” of prosecution); see also Moncrieffe, 569 U.S. at 206. 	This
approach to the realistic probability test should be applied in any circuit that
does not have binding legal authority requiring a contrary interpretation.2
2 	We acknowledge that in certain circumstances, some circuit courts have determined that
a plain or unambiguous textual mismatch between State and Federal controlled substance
isomer definitions may end the categorical inquiry without application of the realistic
probability test. See, e.g., United States v. Minter, 80 F.4th 406, 411–13 (2d. Cir. 2023);
Aguirre-Zuniga v. Garland, 37 F.4th 446, 451–53 (7th Cir. 2022); United States v. Myers,
56 F.4th 595, 599 (8th Cir. 2022). To the extent these decisions are inconsistent with the
application of the realistic probability test to the controlled substance statute we now
address, they are not binding because this case arises in the Ninth Circuit. See Matter of
Anselmo, 20 I&N Dec. 25, 31 (BIA 1989) (“Where we disagree with a court’s position on
a given issue, we decline to follow it outside the court’s circuit.”). The Ninth Circuit has
applied the realistic probability test notwithstanding a statute “textually appear[ing] to
criminalize more conduct than the federal one.” Rodriguez-Gamboa, 972 F.3d at 1152.

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Placing the burden on the respondent to establish a realistic probability is
especially necessary in isomer cases like this one because, as demonstrated
in 	Rodriguez-Gamboa, 	972 	F.3d 	at 	1152, 	some 	States 	use 	catch-all
definitions 	of 	controlled 	substances 	that 	may 	sweep 	in 	theoretical 	or
even scientifically impossible isomers to ensure that all isomers of a
controlled substance are covered.3 	Forcing DHS to scientifically disprove
every theoretical formulation of a controlled substance’s isomers would
clog 	the 	immigration 	courts 	with 	“never-ending 	evidentiary 	hearings
on 	organic 	chemistry” 	and 	frustrate 	the 	promotion 	of 	fairness 	and
consistency 	in 	the 	application 	of 	the 	immigration 	laws 	to 	aliens 	in
different states. 	Rodriguez-Gamboa, 972 	F.3d at 1154 n.5; 	see also
Matter of Navarro Guadarrama, 27 I&N Dec. at 568.
C. Application to the Respondent
DHS has shown by clear and convincing evidence that the respondent
was convicted of possessing methamphetamine with intent to sell in Arizona.
See INA § 240(c)(3)(A), 8 U.S.C. 1229a(c)(3)(A). 	As discussed above,
Arizona defines methamphetamine to include its positional isomers, whereas
Federal law only explicitly includes optical isomers. 	For the reasons
discussed above, this mismatch is insufficient, on its own, to show that the
respondent’s 	conviction 	for 	methamphetamine 	is 	not 	categorically 	a
violation of a law relating to a controlled substance as defined under Federal
law. 	See INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i); see also
Moncrieffe, 569 U.S. at 205–06; Matter of Navarro Guadarrama, 27 I&N
Dec. 	at 	567. 	Nowhere 	in 	these 	proceedings 	has 	the 	respondent
“demonstrate[d] that the State actually prosecutes the relevant offense in
cases 	involving” 	positional 	isomers 	of 	methamphetamine 	that 	are 	not
federally controlled substances. 	Moncrieffe, 569 U.S. at 206. 	On the
contrary, 	DHS 	has 	identified 	at 	least 	one 	positional 	isomer 	of
methamphetamine, phentermine, that is explicitly controlled under both
Arizona 	and 	Federal 	law. 	Thus, 	the 	apparent 	textual 	overbreadth
is ambiguous and may even be illusory, reinforcing the need for the
realistic 	probability 	test 	to 	ensure 	that 	“aliens 	in 	different 	States
face the same consequences for drug-related convictions.” 	Matter of
Navarro Guadarrama, 27 I&N Dec. at 568.
3 	This is likely due to the shift from plant-based drugs to lab-based “synthetic drugs,”
which “are responsible for nearly all of the fatal drug overdoses and poisonings in our
country . . . [and] have transformed . . . the drug landscape . . . [and] the criminal landscape.”
Drug Enf’t Admin., U.S. Dep’t of Just., National Drug Threat Assessment 1 (2024),
https://www.dea.gov/sites/default/files/2024-05/5.23.2024 NDTA-updated.pdf.

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In our previous decision, we remanded the record for the Immigration
Judge to make factual findings concerning the existence of positional isomers
of methamphetamine and the related potential of prosecution under Arizona
and Federal law. 	The Immigration Judge invited DHS to file additional
evidence or present an expert witness to address the issue, and DHS declined.
Thus, the Immigration Judge found that DHS had not met its burden to
establish the respondent’s removability.
However, neither DHS nor the Immigration Judge bears the burden under
the realistic probability test. 	While DHS bears the ultimate burden to
establish removability, INA § 240(c)(3), 8 U.S.C. 1229a(c)(3), “where an
alien has been convicted of violating a State drug statute that includes a
controlled substance that is [defined more broadly than in] . . . the Federal
controlled 	substances 	schedules, 	he 	or 	she 	must 	establish 	a 	realistic
probability that the State would actually apply the language of the statute to
prosecute conduct involving [a] substance [that is not federally controlled] in
order 	to 	avoid 	the 	immigration 	consequences 	of 	such 	a 	conviction.”
Matter of Navarro Guadarrama, 27 I&N Dec. at 567. Further, because DHS
has shown that at least one positional isomer of methamphetamine is
specifically controlled under both Arizona and Federal law, the extent to
which Arizona controls positional isomers of methamphetamine that are not
federally controlled is unclear. Thus, to succeed with his positional isomer
argument and avoid the immigration consequences of his conviction for
possessing methamphetamine for sale, the respondent must establish a
realistic probability that Arizona would actually prosecute conduct involving
a particular positional isomer of methamphetamine that is not federally
controlled. See id.
III. 	CONCLUSION
Accordingly, we will sustain DHS’ appeal and remand the record to the
Immigration Judge to provide the respondent an opportunity to establish a
realistic probability that Arizona prosecutes conduct involving one or more
positional isomers of methamphetamine that are not federally controlled. We
reiterate that the apparent textual isomer mismatch between the Arizona and
Federal definitions is not, by itself, sufficient to establish the requisite
realistic probability. 	In remanding, we express no opinion regarding the
ultimate outcome of these proceedings. 	See Matter of D-G-C-, 28 I&N
Dec. 297, 303 (BIA 2021). 	Given this disposition, we will not reach the
parties’ other appellate arguments at this time. 	INS v. Bagamasbad,
429 U.S. 24, 25 (1976) (stating courts and agencies generally do not need to
make findings on issues that are unnecessary to the results reached). 	The

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Immigration Judge may take any steps deemed appropriate to comply with
our order.
ORDER: DHS’ appeal is sustained.
FURTHER ORDER: 	The record is remanded to the Immigration
Judge for further proceedings and the entry of a new decision consistent with
the foregoing opinion.