Jorge Romero-Millan v. Merrick Garland

discussion had not been appealed to it, and therefore, it was reticent to take a position given the possibility of unintended consequences that were not fully addressed by the parties in that case.

Although petitioners’ removal orders were based on convictions that could trigger the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C), the panel explained that divisibility is purely a legal question, and therefore, is reviewable under § 1252(a)(2)(D), which exempts “constitutional claims or questions of law” from the jurisdiction-stripping provision. Moreover, the panel explained that the application of the modified categorical ROMERO-MILLAN V. GARLAND

approach involves the application of a legal standard to “established facts,” which the Supreme Court in Guerrero- Lasprilla v. Barr, 140 S. Ct. 1062 (2020), held was a reviewable question of law.

Based on the Supreme Court of Arizona’s holding that jury unanimity as to the identity of a specific drug is required for a conviction for drug possession under § 13-3408, the panel held that § 13-3408 is divisible as to drug type. Accordingly, the panel concluded that the agency did not err in by applying…