BIA decision in Matter of Dikhtyar, 28 I&N Dec. 214 (BIA 2021)

The Board of Immigraiton Appeals issued a new precedent decision on January 22, 2021, titled Matter of Dikhtyar. This decision relates to a conviction for possesion of a controlled substance under Section 58-37-8(2)(a)(i) of the Utah Code. The case caption reads:

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.

Matter of Dikhtyar, 28 I&N Dec. 214 (BIA 2021)

The government had charged the Respondent, a lawful permanent resident, under INA 237(a)(2)(B)(i) for having been convicted of a law relating to a controlled substance. The Board reviewed the statute under the categorical approach. According to the Board:

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.

Matter of Dikhtyar, 28 I&N Dec. 214 at 216 (BIA 2021)

After reviewing the relevant caselaw, the Board found that:

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.

Matter of Dikhtyar, 28 I&N Dec. 214 at 222 (BIA 2021)