JOHN DOE, Pеtitioner, -v.- JEFFERSON B. SESSIONS III, United States Attorney General, Respondent.
No. 16-1256
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 29, 2018
August Term 2017 (Argued: September 26, 2017)
Before: LIVINGSTON, LYNCH, and CHIN, Circuit Judges.
Petitioner John Doe seeks review of an April 13, 2016 judgment of the Bureau of Immigration Appeals dismissing his appeal from an October 22, 2015 decision of an Immigration Judge ordering Doe’s removal and denying his application for deferral of removal under the Convention Against Torture (“CAT”). We DENY the petition insofar as Doe challenges his conviction-based removal on the ground that, in determining whether his federal narcotics conviction rendered him removable, the agency was required to apply a “time-of-decision” rule and to compare his statute of conviction to the version of the Controlled Substances Act,
FOR PETITIONER: WHITNEY ELLIOTT (Seymour James, Jr., Adriеne Holder, Maria E. Navarro, Charles Conroy, Ward Oliver, Stacy Taeuber, Julie Dona, on the brief), The Legal Aid Society, New York, NY.
FOR RESPONDENT: DANA M. CAMILLERI (Benjamin P. Mizer, Anthony P. Nicastro, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC.
Petitioner John Doe, a native and citizen of the Dominican Republic admitted to the United States on September 13, 2007 as a lawful permanent resident, seeks review of an April 13, 2016 decision of the Board of Immigration Appeals (“BIA”) dismissing the appeal of an Octobеr 22, 2015 decision of an Immigration Judge (“IJ”), which ordered Doe’s removal and denied his application for deferral of removal under the Convention Against Torture (“CAT”). See In re John Doe, No. A058 529 649 (B.I.A. Apr. 13, 2016), aff’g No. A058 529 649 (Immig. Ct. N.Y. City Oct. 22, 2015).1
Doe was found removable based on his conviction in the Southern District of New York for violating the Controlled Substances Act (“CSA”),
BACKGROUND
Petitioner John Doe, a native and citizen of the Dominican Republic, was admitted to the United States аs a lawful permanent resident in 2007. In 2014, Doe pleaded guilty in the Southern District of New York to one count of conspiracy to distribute and possess with intent to distribute heroin, in violation of
After his conviction, Doe was charged as removable under the Immigration and Nationality Act (“INA”) for having been convicted of a controlled substance offense, a drug trafficking aggravated felony, and a conspiracy to commit a drug trafficking aggravated felony. See
Although Doe’s judgment of conviction specifies that he conspired to distribute heroin, the substantive statute underlying his conspiracy renders it a crime to distribute or possess with intent to distribute “a controlled substance,” meaning any substance listed in one of the five CSA Schedules.
The IJ disagreed. In a written decision, the IJ explained that Doe’s motion to terminate was properly denied because Matter of Ferreira, 26 I. & N. Dec. 415 (B.I.A. 2014), instructs that a court is to compare the statute of conviction to the CSA Schedules in place at the time of conviction. “In this case,” the IJ concluded, “[Doe] was convicted of a crime in violation of the CSA. Thus, at the time of his conviction, he was necessarily convicted of a crime relating to a federally controlled substance.” CAR at 102–03. As relevant here, the IJ also denied CAT relief, noting that Doe had conceded that only one of his co-conspirators, a friend who posed no threat, was even aware that he had cooperated, and concluding that Doe failed to demonstrate that he would likely be tortured by his co-defendants or the rival Dominican family if returnеd to the Dominican Republic. Id. at 104–06.
Doe’s petition for review argues (1) that he is not removable as charged under the “categorical approach” and (2) that as to CAT relief, the agency committed a legal error by concluding that Doe “conceded that . . . only [one] person[] knew that [Doe] cooperated with the authorities.” Id. at 105. We address each of these arguments in turn.
DISCUSSION
I. The Categorical Approach and Doe’s CSA Conviction
Because Doe was ordered removed for a drug conviction, our review is limited to “constitutional claims or questions of law raised upon a petition for review.” Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159, 164 (2d Cir. 2006) (quoting
* * *
Pursuant to the INA, an alien may be removable after the time of admission when he or she is convicted, as relevant here, of
- violating or conspiring to violate “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21)” and excluding single offenses involving small amounts of marijuana,
8 U.S.C. § 1227(a)(2)(B)(i) ;2 or - committing an aggravated felony,
8 U.S.C. § 1227(a)(2)(A)(iii) , a term which encompasses, in relevant part, crimes involving ”illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18),”8 U.S.C. § 1101(a)(43)(B) ;3 or - conspiring to commit an aggravated felony,
8 U.S.C. § 1101(a)(43)(U) .
Doe was charged as removable for having been convicted of (1) violating a law relating to a controlled substance; (2) a drug trafficking aggravated felony crime; and (3) a conspiracy to commit a drug trafficking aggravated felony crime.
In the context of state criminal convictions alleged to constitute drug trafficking offenses for which an alien is removable, we have employed the “categorical approach to determine whether [a] state offense is comparable to an оffense listed in the INA.” Moncrieffe, 569 U.S. at 190 (internal quotation marks and citations omitted). The relevant inquiry
In contrast, our working assumption has been that “[w]here an alien has a prior federal conviction, it is a straightforward matter to determine whether the conviction was for a ‘felony punishable under the CSA.’” Moncrieffe, 569 U.S. at 211 (Alito, J., dissеnting) (brackets omitted) (emphasis added); see also Carachuri-Rosendo v. Holder, 560 U.S. 563, 583 (2010) (Scalia, J., concurring in the judgment) (noting relevant INA provisions make clear that “a federal conviction for a felony offense under the Controlled Substances Act would qualify [as a felony punishable under the CSA]” (emphasis in original)). Doe’s felony conviction for violating the CSA is obviously such a conviction.
But, argues Doe, to determine whether his conviction now makes him removable, the agency should apply a “time-of-dеcision” rule and compare his statute of conviction to the version of the CSA in effect during his removal proceedings. The DEA removed naloxegol from the CSA Schedules in 2015, before the IJ rendered a decision. See Schedules of Controlled Substances: Removal of Naloxegol From Control, 80 Fed. Reg. at 3469. According to Doe, because the 2014 CSA Schedules, which included naloxegol as a controlled substance, “criminalize[d] a broader swath” of substаnces than the 2015 CSA Schedules in force at the time of his removal proceedings, Doe’s 2014 conviction is no longer a removable offense pursuant to the categorical approach. Descamps v. United States, 570 U.S. 254, 258 (2013) (discussing use of categorical analysis to assess whether a statute of conviction “criminalizes a broader swath of conduct than the relevant generic offense” in the context of the Armed Career Criminal Act,
We disagree. In emplоying the categorical approach to determine whether state drug offenses constitute felonies punishable under the CSA, the Supreme Court, this Court, and the BIA have previously assumed that an alien’s removability depends on whether a state drug schedule sweeps more broadly than the CSA Schedules in force at the time of the alien’s conviction, and not at the time that his removal proceedings are initiated. See, e.g., Mellouli, 135 S. Ct. at 1988 (“At the time of Mellouli’s conviction, Kansas’[s] schedules of controlled substances included at least nine substances—e.g., salvia and jimson weed—not defined” as controlled substances under federal law (emphasis added)); Collymore v. Lynch, 828 F.3d 139, 141 n.2, 142 n.4, 145 (2d Cir. 2016) (noting that Collymore’s statute of conviction and the CSA Schedule had been amended, but comparing state and federal controlled substances schedules in effect “at the time of Collymore’s conviction” (emphasis added)); Matter of Ferreira, 26 I. & N. Dec. at 418 (“[T]he presence of these two substances in the Connecticut schedules at the time of the respondent’s conviction meant that the definition of a controlled substance incorporated by [the Connecticut law] was broader than the definition of a controlled substance [under federal law].” (emphasis added)).4 Doe suggests no persuasive
Noting that the issue in this case was not squarely raised by the parties in Mellouli, Collymore, and Matter of Ferreira, Doe argues that the use of present tense verbs in particular sections of the INA indicates that we should refer to the version of the CSA Schedules in force when removal proceedings are initiated. Pet’r Br. 21–22 (quoting
Referencing the CSA Schedules in effect at the time of conviction, moreover, aligns with the purpose of the categorical approach to statutory interpretation. As the Supreme Court has explained, “[b]y focusing on the legal question of what a conviction necessarily established, the categorical approach ordinarily works to promote efficiency, fairness, and predictability in the administration of immigration law.” Mellouli, 135 S. Ct. at 1987. If the point of comparison is the CSA Schedules at the time of removal proceedings, however, it is impossible for either the Government or the alien to anticipate the immigration consequences of a guilty plea or conviction at trial at the point when these parties must determine how to proceed with the criminal case. For example, by Doe’s logic, if at the time of conviction, an alien’s state statute of conviction encompassed a broader range of drugs than the CSA Schedules,
Though “we have held that the Supreme Court’s language in [Padilla v. Kentucky, 559 U.S. 356, 374 (2010), and I.N.S. v. St. Cyr, 533 U.S. 289, 323 (2001),] was insufficient to overturn our prior holdings that retroactive deportation does not violate the Ex Post Facto Clause[, n]evertheless, the gravitational pull of these constitutional norms—the rights of fair notice and effective assistance оf counsel” remains instructive. Lugo v. Holder, 783 F.3d 119, 122 (2d Cir. 2015). The “starting place” of the categorical approach should enable “fair notice and effective assistance of counsel” by focusing on the CSA Schedules in effect at the time of conviction. Id.; Carachuri-Rosendo, 560 U.S. at 576.6 Such a “time-of-conviction” rule provides both the Government and the alien with maximum clarity at the point at which it is most critical for an alien to assess (with aid from his defense attorney) whether “pending criminаl charges may carry a risk of adverse immigration consequences.” Padilla, 559 U.S. at 369; see also Mellouli, 135 S. Ct. at 1987 (“In particular, the [categorical] approach enables aliens to anticipate the immigration consequences of guilty pleas in criminal court, and to enter safe harbor guilty pleas that do not expose the alien defendant to the risk of immigration sanctions.” (internal quotation marks and brackets omitted)).
As the BIA noted in Matter of Ferreira, the CSA schedule is a moving target: since 1970, “approximately 160 substances have been added, removed, or transferred from one schedule to another.” 26 I. & N. Dec. at 418; see also Mellouli, 135 S. Ct. at 1987 & n.6 (discussing “increasingly long list of controlled substances”
as the basis for offenses that would render an alien removable). A petitioner’s removability should not, as a rule, be based on fortuities concerning the timing of the petitioner’s removal proceedings or DEA rulemaking. Cf. United States v. Smith, 354 F.3d 171, 174 (2d Cir. 2003) (noting design of federal “saving statute,”
II. CAT Relief
Doe next argues, with more success, that the agency committed legal error in assessing his claim that his removal should be defеrred pursuant to the CAT. In his brief, Doe asserts that the agency
Doe alleged in his removal proceedings that prior to a court appearance in his criminal case, the ringleader of the narcotics conspiracy in which Doe participated issued a general threat to his co-defendants thаt “the person who cooperated was going to have problems once that person goes back to the Dominican Republic.” CAR at 200. Doe also alleged that an individual approached his nephew in the Dominican Republic and informed him that if Doe left jail before the other co-defendants because he was a cooperator, Doe “was going to have problems if [he] went back to the Dominican Republic.” Id. at 204. This evidence formed the primary basis for Doe’s CAT claim.
The IJ stated in a written opinion that Doe had conceded that only one co-defendant, who was a close friend, knew that Doe had cooperated with law enforcement. This was a mistake. Neither Doe nor the co-defendant testified to that effect at the removal hearing. To the contrary, the co-defendant testified that the ringleader and at least three other co-defendants believed Doe had cooрerated because Doe was released from prison early. Doe also points to the prosecutor’s sentencing letter, which specifically affirms that Doe’s “information led to the conviction by guilty plea of all seven individuals about whom he provided information” and that it is “not mere supposition” to conclude that Doe’s assistance resulted in these pleas “because [Doe’s] inculpation of those individuals was made public in the Complaint, such that eаch of [his co-defendants] was well aware that [Doe] would likely be able to testify against them at any trial.” Id. at 843 (emphasis added). The IJ’s decision does not acknowledge this letter, much less assess its significance to Doe’s CAT claim.
In sum, we conclude that the agency overlooked key evidence and mischaracterized the record when it determined that Doe conceded that only one co-defendant knew about his coopеration. This fundamental legal error undermines the reliability of the agency’s determination that Doe’s application for CAT relief should be denied. Accordingly, and expressing no view as to the merits, we remand for the agency to determine whether Doe’s allegations warrant deferral of removal under the CAT.
CONCLUSION
We have considered all of Doe’s other arguments and find them to be either without merit or beyond our jurisdiction. For the foregoing reasons, Doe’s petition