Matter of Benjamin Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025): The New Front Line on the Realistic Probability Test
Key Point for Lawyers and Advocates: The Board of Immigration Appeals (BIA) just clarified in Matter of Benjamin Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025), that the “realistic probability test” must be used whenever there’s a mismatch between state and federal drug definitions on controlled substances—especially regarding isomer variants. For Arizona methamphetamine convictions, this means:
- Arizona law covers methamphetamine’s optical, positional, and geometric isomers.
- Federal law covers only optical isomers.
- To avoid removal, respondents must show Arizona actually prosecutes cases involving meth isomers not on the federal list—pointing to textual mismatch alone is not enough.
Case Overview
- Respondent convicted (2017) in Arizona for possession of methamphetamine for sale.
- Department of Homeland Security (DHS) charged him as removable under INA section 237(a)(2)(B)(i) (controlled substance violation).
- Immigration Judge initially terminated removal, finding Arizona’s law too broad compared to federal law.
- DHS appealed. The BIA sustained the appeal, clarifying the correct test and remanding.
The Categorical Approach Meets the Realistic Probability Test
The BIA reaffirmed that under Moncrieffe v. Holder, 569 U.S. 184 (2013), and Ninth Circuit precedent, it’s not enough for a noncitizen to cite a mismatch in language (such as Arizona criminalizing all methamphetamine isomers while federal law is narrower). Instead, the noncitizen has to demonstrate that Arizona has prosecuted—or would realistically prosecute—a substance or isomer not federally controlled.
How Does the Burden Work?
- DHS’s job: Prove the existence and identity of a state conviction for a controlled substance.
- Respondent’s job: If they claim Arizona’s definition is overbroad, they must provide evidence or examples that Arizona actually prosecutes based on those isomers not federally listed.
Why Does This Matter?
This case aligns the burden of proof across isomer mismatches and other forms of “textual overbreadth.” It makes clear that disputes about the technical chemistry of controlled substance definitions require more than pointing to the words of the statute—there must be real-world evidence of prosecution.
Case citation:
Matter of Benjamin Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025)
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For Practitioners
In cases involving convictions under state controlled substance statutes that are arguably broader than federal law, be prepared to dig deep for real-world examples and case law showing how the state actually prosecutes. The “realistic probability” standard is no mere formality—it’s now a critical battlefield in crimmigration defense.
