953 F.3d 361
5th Cir.2020Background
- Ivan Vetcher, a lawful permanent resident and Belarus native, pled guilty in Texas (2014) to two counts of delivery of psilocybin/psilocin (Tex. Health & Safety Code § 481.113(d)); sentences were suspended in favor of 10 years' community supervision.
- DHS served a notice to appear charging removability based on a state controlled-substance conviction under INA § 237(a)(2)(B)(i); the government earlier had alleged an aggravated felony but withdrew that charge after this court held the Texas offense is not categorically an aggravated felony.
- Proceedings produced multiple adjudications and remands; the IJ denied cancellation of removal after balancing equities, and the BIA affirmed denial of cancellation and held the conviction was a controlled-substance violation and a "particularly serious crime," barring withholding of removal.
- Vetcher challenged (1) whether the Texas statute categorically matches the federal Controlled Substances Act (CSA) definition, (2) whether his conviction qualifies as a "particularly serious crime," and (3) whether inadequate law-library resources violated due process.
- The Fifth Circuit applied the categorical approach and the "realistic probability" test, concluded Vetcher failed to show Texas would likely prosecute nongeneric (non‑federal) substances, upheld the BIA/IJ conclusions about particular seriousness, and rejected the due-process claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Categorical match between Tex. §481.113 and federal CSA for removability | Vetcher: Texas statute is broader; many Penalty Group 2/2‑A substances were not on federal schedules at his conviction, so no categorical match | Government: Even if facially broader, Vetcher must show a realistic probability Texas prosecutes nongeneric conduct; he failed to identify controlling state cases | Court: Facial overbreadth found, but Vetcher did not show realistic probability of nongeneric application; conviction treated as matching federal definition for removability/cancellation purposes |
| Whether conviction is a "particularly serious crime" barring withholding of removal | Vetcher: "Particularly serious crime" should be limited to aggravated felonies | Government: Term is broader; aggravated felonies are per se particularly serious, but non‑aggravated offenses can also qualify case‑by‑case | Court: Agrees with government; term is not limited to aggravated felonies; IJ/BIA finding that Vetcher's conviction was particularly serious stands |
| Due process claim re: inadequate law‑library/resources | Vetcher: Lack of Title 21, Texas statutes, and cases prejudiced his ability to litigate removal and cancellation | Government: Vetcher litigated pro se successfully for years (secured stay, obtained remands, filed appeals), showing no substantial prejudice | Court: No due process violation—Vetcher failed to demonstrate substantial prejudice under Lewis v. Casey |
| Proof standard for "realistic probability" of nongeneric prosecutions | Vetcher: Cited arrest records and a pending state case brief suggesting prosecution of non‑federal substances | Government: Actual state court decisions applying the statute to nongeneric substances are required; pending briefs or arrests are insufficient | Court: Requires actual state cases; Vetcher's materials (anonymous arrests, pending brief) were insufficient to show realistic probability |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (describes the categorical approach and presuming conviction rests on least conduct)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (an alien's actual conduct is irrelevant in the categorical approach)
- Vazquez v. Sessions, 885 F.3d 862 (5th Cir. 2018) (applies categorical/realistic‑probability framework in immigration removability context)
- United States v. Castillo‑Rivera, 853 F.3d 218 (5th Cir. 2017) (requires pointing to actual state cases to show nongeneric application)
- Bastardo‑Vale v. Att’y Gen., 934 F.3d 255 (3d Cir. 2019) (en banc) (holds "particularly serious crime" can include non‑aggravated felonies)
- Lewis v. Casey, 518 U.S. 343 (1996) (requires showing that library or assistance shortcomings hindered pursuit of a legal claim)
- Reno v. Flores, 507 U.S. 292 (1993) (aliens entitled to due process in deportation proceedings)
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (treats particular‑seriousness determination as not limited to aggravated felonies)
- Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507 (2019) (statutory phrases ordinarily carry the same meaning across contexts)
- Anwar v. INS, 116 F.3d 140 (5th Cir. 1997) (to prevail on due process challenge in removal proceedings, detainee must show substantial prejudice)