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 October 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).
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 as 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 ,
*207The BIA dismissed Doe's appeal. As to Doe's argument that his conviction no longer categorically constitutes a crime relating to a controlled substance, the BIA agreed with the IJ that "the proper approach is to compare the statute of conviction with the federal drug schedules as they existed at the time of conviction ," not at the time of removal proceedings. CAR at 5 (emphasis in original). Regarding CAT relief, the BIA also discerned no clear error in the IJ's determination that Doe failed to show a likelihood of torture.
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 ,
* * *
Pursuant to the INA, an alien may be removable after the time of admission when he or she is convicted, as relevant here, of
(1) 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
(2) 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
(3) 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 offense listed in the INA." Moncrieffe ,
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 ,
But, argues Doe, to determine whether his conviction now makes him removable, the agency should apply a "time-of-decision" 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,
We disagree. In employing 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 ,
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, *210then at that time the alien would not be categorically removable. But if the CSA Schedules were later expanded to encompass the same drugs as the state statute, the same alien could then become removable by the time removal proceedings commenced.
Though "we have held that the Supreme Court's language in [ Padilla v. Kentucky ,
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."
II. CAT Relief
Doe next argues, with more success, that the agency committed legal error in assessing his claim that his removal should be deferred pursuant to the CAT. In his brief, Doe asserts that the agency *211erroneously concluded that he conceded that his co-defendants were unaware that he had cooperated with the Government in his criminal case when, in fact, he both argued and presented evidence to the contrary. "[W]hen an alien who is otherwise removable due to the commission of a covered criminal offense seeks deferral of removal under the CAT, appellate jurisdiction is limited to review of constitutional claims and questions of law." Ortiz-Franco v. Holder ,
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 that "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 cooperated 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 each 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 cooperation. 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 *212for review is GRANTED in part and DENIED in part. Accordingly, we VACATE the decision of the BIA and REMAND for further proceedings consistent with this opinion.
Citations to the agency's decisions have been modified to reflect our grant of the petitioner's motion to proceed under a pseudonym.
As the Supreme Court stated in Mellouli v. Lynch , --- U.S. ----,
"[T]he term 'drug trafficking crime' means any felony punishable under the Controlled Substances Act (21 U.S.C. [§] 801 et seq. ) ...."
Gousse v. Ashcroft ,
Indeed, it can more persuasively be argued that the plain meaning of the statutory text points to a "time-of-conviction" rule. INA provisions authorizing the Attorney General to remove aliens convicted of serious offenses after admission focus not on the timing of removal proceedings but, instead, on the conviction itself. Cf. Morrison v. Nat'l Austl. Bank Ltd. ,
Doe's invocation of the pending-action canon to argue for a time-of-removal rule is unavailing. Pet'r Br. 23-26; see also Antonin Scalia & Bryan A. Garner, Reading Law 266 (2012) (defining the pending-action canon as requiring that "[w]hen statutory law is altered during the pendency of a lawsuit, the courts at every level must apply the new law unless doing so would violate the presumption against retroactivity"). This canon is inapplicable here because the statutory law has not changed. At both the time of Doe's conviction and the time of his removal proceedings, the statutory law authorized his removal because Doe remained "convicted " of an aggravated felony or controlled substances offense "after admission."