Swaby v. Yates
847 F.3d 62
| 1st Cir. | 2017Background
- Swaby, a Jamaican national, became a lawful permanent resident in 2010 and in 2013 pled nolo contendere in Rhode Island to three counts of manufacturing/delivering/possessing with intent to distribute a controlled substance (marijuana).
- DHS served a Notice to Appear charging removability under 8 U.S.C. § 1227(a)(2)(B)(i) (offense relating to a federally defined controlled substance).
- The Rhode Island drug schedules at the relevant time included at least one substance (thenylfentanyl) not listed on the federal schedules, making the Rhode Island statute broader on its face than the federal definition.
- The IJ found Swaby removable, stayed and reopened proceedings, then—after DHS mistakenly removed and returned Swaby—denied cancellation of removal; the BIA affirmed those rulings. Swaby petitioned for review.
- The key legal questions were (1) whether Swaby’s Rhode Island convictions are removable under the categorical approach given the state schedule’s broader scope, (2) whether the modified categorical approach applies, and (3) whether the IJ erred as a matter of law in weighing factors in denying cancellation of removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Swaby’s Rhode Island convictions qualify as removable under § 1227(a)(2)(B)(i) using the categorical approach | Swaby: the Rhode Island statute is broader than the federal definition (includes thenylfentanyl), so categorical approach precludes removability | Government/BIA: under Matter of Ferreira and Duenas‑Alvarez, petitioner must show a realistic probability state would prosecute the non‑federally listed drug; Swaby failed to show that | Court: statutory text controls; because RI schedule plainly covers a drug not on federal schedules, the state offense is overbroad under the categorical approach (categorical approach fails) |
| Whether Duenas‑Alvarez’s “realistic probability” test allows treating the overbroad state statute as matching the federal predicate | Swaby: Duenas‑Alvarez does not permit disregarding a clear statutory difference in scope | Government/BIA: Duenas‑Alvarez permits looking to realistic probability of state prosecutions to avoid theoretical overbreadth | Held: Duenas‑Alvarez does not allow rewriting a statute’s plain scope; realistic‑probability inquiry cannot narrow a statute that on its face is broader |
| Whether the modified categorical approach applies (is the statute divisible by drug type?) | Swaby: Rhode Island does not make the particular drug an element; drug identity is merely a means, so modified approach inapplicable | Government: statute is divisible by drug type (distinct offenses for listed drugs); charging documents identify marijuana, so modified approach applies | Held: Applying Mathis and state precedent (Feng), the statute is divisible by drug type; the indictment/plea identifies marijuana, so modified categorical approach applies and convictions qualify as removals under § 1227(a)(2)(B)(i) |
| Whether IJ erred as matter of law in denial of cancellation of removal (consideration of children’s mothers; failure to consider hardship) | Swaby: IJ improperly treated having five children with five different mothers as a negative factor and failed to consider hardship to two children | Government/BIA: IJ permissibly weighed family ties as positive factors and assessed strength of ties; record shows IJ considered hardship and evidence | Held: No legal error; IJ appropriately considered family factors and hardship; challenge to discretionary balancing dismissed for lack of jurisdiction |
Key Cases Cited
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (categorical approach governs removability for controlled‑substance offenses)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (modified categorical approach permits consulting limited conviction records when statute is divisible)
- Gonzalez v. Duenas‑Alvarez, 549 U.S. 183 (2007) (‘‘realistic probability’’ language cautioning against mere imaginative readings of state statutes)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (elements vs. means analysis to determine statute divisibility)
- Jean‑Louis v. Attorney General, 582 F.3d 462 (3d Cir. 2009) (discussion applying realistic‑probability reasoning to controlled‑substance statutes)
- United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (state statute text can show realistic probability and support application of modified categorical approach)