960 F.3d 722
5th Cir.2020Background
- Alexis, a Trinidad and Tobago native and lawful permanent resident, pled guilty in Texas (Nov. 2016) to possession of a controlled substance (<1 gram) and was sentenced to one year. DHS charged removability under 8 U.S.C. § 1227(a)(2)(B)(i) alleging the substance was cocaine.
- Alexis admitted the conviction but argued the Texas judgment did not specify cocaine; he contested removability and moved to terminate proceedings arguing the state statute is overbroad compared to the federal CSO definition.
- The IJ applied the categorical approach, found Texas’s statutory definition of “cocaine” includes "position isomers" not covered by the federal definition, but concluded Alexis failed to show a realistic probability Texas prosecutes possession of position isomers; the BIA affirmed.
- Alexis sought asylum, withholding of removal, and CAT protection based on three proposed particular social groups (children trapped in family relationships; relatives of gang-member cousins; persons in Trinidad & Tobago with psychotic mental illness); the IJ and BIA rejected all groups and nexus; credibility was positive but relief denied.
- The Fifth Circuit reviewed de novo legal questions but deferred to BIA on factual findings; it held DHS met its burden to show removability (Alexis failed the realistic-probability requirement) and dismissed for lack of jurisdiction the challenges to asylum/withholding/CAT that depended on contested facts; Alexis had already been removed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Whether Texas conviction for "cocaine" is categorically a federal CSO | Alexis: Texas definition is overbroad; state statute’s inclusion of "position isomers" makes it not a categorical match | DHS: Even if facially broader, petitioner must show realistic probability Texas prosecutes the nongeneric conduct; DHS satisfied burden via record | Held: No categorical mismatch shown—Alexis failed to identify an actual case showing Texas prosecutes position isomers; DHS met burden, removability affirmed |
| 2) Whether Alexis satisfied the "realistic probability" (actual-case) test | Alexis: statutory text and common-sense chemistry suggest overbreadth; practical barriers make producing cases impossible | DHS: Circuit precedent (Castillo-Rivera) requires pointing to actual prosecutions applying the statute nongenerically | Held: Fifth Circuit follows Castillo-Rivera; theoretical possibilities insufficient; realistic-probability test not met by Alexis |
| 3) Asylum based on proposed PSGs (three groups) | Alexis: persecuted or feared persecution as a member of each PSG | DHS/IJ/BIA: Record lacks particularity, social distinction, or nexus; many factual findings against Alexis | Held: Court dismissed review for lack of jurisdiction as claims rest on disputed facts; BIA’s negative factual findings stand |
| 4) Withholding of removal and CAT protection | Alexis: withholding and CAT relief warranted given past harm and risk on return | DHS: Evidence insufficient to show clear probability of persecution or more-likely-than-not torture; no government acquiescence shown | Held: Same jurisdictional limitation; appellate review dismissed as claims rest on contested factual findings and IJ/BIA determinations were not legally erroneous |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (explains the "realistic probability" requirement to show a state statute reaches nongeneric conduct)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (requires a petitioner to point to actual cases applying the statute in a nongeneric manner)
- Mellouli v. Lynch, 575 U.S. 798 (2015) (compares state and federal controlled‑substance lists and emphasizes statutory comparison under the categorical approach)
- United States v. Castillo‑Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc) (Fifth Circuit requires petitioner to identify actual prosecutions to satisfy realistic‑probability test)
- Vazquez v. Sessions, 885 F.3d 862 (5th Cir. 2018) (discusses application of the categorical approach and deference to BIA)
- Guerrero‑Lasprilla v. Barr, 140 S. Ct. 1062 (2020) (clarifies jurisdiction to review application of law to undisputed facts)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (addresses categorical approach principles in comparing state statutes to federal generic offenses)