Ivan Rodriguez Vazquez v. Jefferson Sessions, III
885 F.3d 862
5th Cir.2018Background
- Ivan Bernabe Rodriguez Vazquez, a lawful permanent resident, pled guilty in Oklahoma (2013) to possession of a controlled dangerous substance (cocaine) under Okla. Stat. tit. 63 § 2-402(A)(1); sentence deferred with probation.
- DHS initiated removal under 8 U.S.C. § 1227(a)(2)(B)(i) as a controlled-substance conviction; IJ found the conviction valid for immigration purposes.
- On appeal to the BIA, Vazquez argued the Oklahoma drug schedules are broader than federal schedules and therefore his conviction is not a categorical match to the federal definition of a controlled substance.
- The BIA compared Oklahoma Schedule II (Part B) to federal Schedule II and concluded there was a categorical match, and noted the realistic-probability test requires evidence that the State actually prosecutes non-federal substances to defeat removability.
- The Fifth Circuit found the Oklahoma schedules facially overbroad (identifying at least Salvia Divinorum and Salvinorin A as state-only substances) but held Castillo-Rivera controls: Vazquez needed to show a realistic probability that Oklahoma prosecutes those non-federal substances, a showing he did not make.
- Because Vazquez did not argue or present evidence satisfying the realistic-probability test on appeal, the petition for review was denied.
Issues
| Issue | Plaintiff's Argument (Vazquez) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Oklahoma conviction categorically matches federal controlled-substance definition | Oklahoma schedules list substances not in federal schedules, so the state statute is overbroad and not a categorical match | Even if lists differ, removal may be proper if State actually prosecutes non-federal substances; BIA presumed match absent evidence of such prosecutions | Oklahoma statute is facially overbroad, but Vazquez waived showing realistic probability of State prosecutions; review denied |
| Whether the BIA properly applied the categorical approach (vs. modified categorical) | Statute is overbroad and not divisible; modified categorical inapplicable | Government argues statute is divisible and modified categorical could identify the controlled substance (cocaine) | Court declined to decide divisibility because BIA did not rely on modified categorical approach; cannot affirm on that unarticulated basis |
| Whether petitioner exhausted administrative remedies before BIA | Vazquez contended he raised the overbreadth issue to the BIA | Government did not dispute exhaustion | Court held Vazquez fairly presented the overbreadth claim to the BIA and thus exhausted administrative remedies |
| Applicability of the realistic-probability test to state drug-schedule mismatches | Vazquez argued requiring additional proof of prosecutions improperly burdens aliens and ignores statute text | Government and BIA relied on Matter of Ferreira and Castillo-Rivera to require evidence that State prosecutes non-federal substances | Under Castillo-Rivera (binding), petitioner must show actual state prosecutions (realistic probability); Vazquez did not, so claim failed |
Key Cases Cited
- Mellouli v. Lynch, 135 S. Ct. 1980 (Sup. Ct. 2015) (categorical approach and definition of controlled substance under federal law govern removability)
- Moncrieffe v. Holder, 569 U.S. 184 (U.S. 2013) (categorical approach: presume conviction rests on least of acts criminalized and realistic-probability standard)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (U.S. 2007) (realistic-probability test: must show State actually prosecutes nongeneric conduct)
- Mathis v. United States, 136 S. Ct. 2243 (Sup. Ct. 2016) (distinguishes categorical and modified categorical approaches; divisibility concept)
- United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc) (binding in this Circuit: a defendant must point to actual state cases applying statute nongenerically to satisfy realistic-probability requirement)