Ivan Rodriguez Vazquez v. Jefferson Sessions, IIIIvan Rodriguez Vazquez v. Jefferson Sessions, III
Petition for Review of an Order of the Board of Immigration Appeals
Before JONES, SMITH, and PRADO, Circuit Judges.
Ivan Bernabe Rodriguez Vazquez (“Vazquez“) appeals the Board of Immigration Appeals‘s (“BIA“) decision that he was eligible for deportation pursuant to
The Fifth Circuit has held that the realistic probability test applies whenever the categorical approach is employed. See United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc), cert. denied, No. 17-5054, 2017 WL 2855255 (Dec. 4, 2017). Given that the state statute is facially broader than its federal analog, Castillo-Rivera suggests that Vazquez can prevail only if the realistic probability test is satisfied. But he fails to address the question in his brief on appeal, thus waiving the only argument available to him in the wake of Castillo-Rivera. Accordingly, we DENY the petition for review.
Vazquez, a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident around October 12, 2007. On August 28, 2013, Vazquez was convicted in Oklahoma for possession of a controlled and dangerous substance, cocaine, in violation of Oklahoma Statute Annotated title 63, § 2-402(A)(1) (2013). Vazquez pleaded guilty and was sentenced to a deferred term of imprisonment of three years, to serve 30 days, followed by 24 months of supervised probation. On July 23, 2015, the U.S. Department of Homeland Security (“DHS“) issued Vazquez a Notice to Appear, charging that he was subject to removal pursuant to § 237(a)(2)(B)(i) of the Immigration and Nationality Act,
Vazquez denied the factual allegations pertaining to his conviction, noting that the judgment was deferred and, under Oklahoma law, the conviction would be automatically expunged upon his satisfactory completion of the probation term. He also sought, and received, several continuances while he collaterally attacked his conviction in state court. The Immigration Judge (“IJ“) found by clear and convincing evidence that Vazquez was convicted of cocaine possession based on documentary evidence submitted by the DHS. The documentary evidence provided that Vazquez pleaded guilty in 2013 to “possession of controlled dangerous substance - cocaine.” The IJ concluded that Vazquez‘s conviction was valid for immigration purposes, and he was removable as charged.
Vazquez appealed the IJ‘s decision to the BIA. He argued, inter alia, that the IJ failed to conduct a categorical analysis of the statute of conviction, the statute was not divisible, and violating Oklahoma‘s controlled substances statute did not equate to violating the federal Controlled Substances Act because the Oklahoma and federal schedules did not categorically match. The BIA dismissed the appeal, concluding that Vazquez was removable pursuant to
there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach. In other words . . . we presume there is a categorical match between state and federal drug schedules unless the respondent shows that the state actually prosecutes cases involving substances not on the federal schedule.
Vazquez filed a timely petition for review.
II. DISCUSSION
The removal proceedings and the direct appeal to the BIA were conducted within this Circuit. See
A. Effective Exhaustion of Vazquez‘s Claim
As a preliminary issue, this Court must determine whether Vazquez properly exhausted his claim before the BIA. We have jurisdiction to determine our own jurisdiction. Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009). Judicial review of a final removal order is only available if “the alien has exhausted all administrative remedies available to the alien as of right.”
In order to satisfy the exhaustion requirement, Fifth Circuit cases “have continually stated that a petitioner must ‘raise,’ ‘present,’ or ‘mention’ an issue to the BIA to satisfy exhaustion.” Omari, 562 F.3d at 321. This requires some affirmative action by a party, but it is by no means a requirement that the arguments be identical. See id. For example, in Carranza-de Salinas v. Gonzalez, 477 F.3d 200 (5th Cir. 2007), the petitioner exhausted his argument by presenting it in a “less developed form.” Id. at 206-07. In Dale v. Holder, a petitioner properly exhausted an argument regarding divisibility of a statute even though the argument before the BIA was not identical to the argument presented on appeal. 610 F.3d 294, 299-301 (5th Cir. 2010). This Court held that subsequent variations in analysis or changes in the scope of an argument do not render an issue unexhausted. Id. Similarly, in Burke v. Mukasey, a pro se petitioner‘s general argument to the BIA embraced a slightly more specific question, and thus his claim on appeal was exhausted. 509 F.3d 695, 696 (5th Cir. 2007). The key requirement in these cases is that a petitioner must have presented an issue in some concrete way in order to put the BIA on notice of his claim. See Omari, 562 F.3d at 322 (framing the
Vazquez asserts that he properly raised all issues before the BIA. Specifically, he exhausted the issue of whether or not the Oklahoma controlled substance schedules included more substances than the federal schedules such that they were not a generic match. Thus, a controlled substance offense under Oklahoma law could not categorically be an offense related to a controlled substance as required by
On appeal, Vazquez relies on three other substances that he claims are not included in any federal schedule: Salvia Divinorum, Salvinorin A, and Cyclohexamine.2 Salvia Divinorum and Salvinorin A are not federally controlled substances. Compare Okla. Stats. Ann. tit. 63, §§ 2-204, 2-206, with
http://www.deadiversion.usdoj.gov/drug_chem_info/salvia_d.pdf. Although Vazquez did not reference these specific substances in his brief to the BIA, we find that he exhausted his overbreadth argument. While Vazquez may have cited different examples, the issue he identified was that the Oklahoma schedules were not a categorical match to federal schedules. Vazquez explicitly told the BIA as much in his brief. Because Vazquez‘s criminal penalty applies to any Schedule I or II substance, it is necessary to compare the Oklahoma and federal Schedules I and II to determine the acts criminalized under the categorical approach. Vazquez‘s broader argument was thus sufficient to fairly present the issue before the BIA. See Omari, 562 F.3d at 322 (recognizing that the exhaustion requirement was met where the “petitioners made some concrete statement before the BIA to which they could reasonably tie their claims“). His argument thus “embraces” the more narrow issue of comparing Oklahoma‘s controlled substance schedules.
This is not the case where efficient adjudication is at issue, and Vazquez is not asking us to require the BIA to “divine from the record all potentially-disputed issues.” Omari, 562 F.3d at 322. By making the argument that (1) the Oklahoma statute of conviction was not a categorical match, and (2) the Oklahoma schedules had at least one substance not on the federal schedules, Vazquez fairly identified the issue, notified the BIA of the appropriate standard, and the BIA addressed the merits of his claim. Thus, we may hear the claim Vazquez now makes on appeal—both that the BIA erred in employing the categorical approach and that the Oklahoma statute is not a categorical match to the federal statute.
B. The BIA Decision
Vazquez challenges the BIA‘s conclusion that he was eligible for removal based on his Oklahoma conviction. When reviewing a BIA decision, questions of law are reviewed de novo, but this Court defers to the BIA‘s interpretation of immigration statutes and regulations. Danso, 489 F.3d at 712-13. Review of BIA decisions is confined to the BIA‘s analysis and reasoning; this Court “may usually only affirm the BIA on the basis of its stated rationale.” Enriquez-Gutierrez, 612 F.3d at 407; see also Rodriguez-Barajas v. Holder, 624 F.3d 678, 679 (5th Cir. 2010). This Court reviews the BIA‘s decision and the decision of the IJ to the extent that it influenced the BIA. Zhu v. Gonzales, 493 F.3d 588, 593-94 (5th Cir. 2007).
Vazquez was convicted under Oklahoma Statute Annotated title 63, § 2-402(A)(1) (2013), which at the time of his conviction provided:
It shall be unlawful for any person knowingly or intentionally to possess a controlled dangerous substance unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his or her professional practice, or except as otherwise authorized by this act.
The term “controlled dangerous substance” was defined as “a drug, substance or immediate precursor in Schedules I through V of the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title.”
An alien who, after admission to the United States, is convicted of violating any state, federal, or foreign law “relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one‘s own use of 30 grams or less of marijuana, is deportable.”
But Vazquez is not eligible for removal merely because cocaine is a controlled substance under both federal and Oklahoma law. In order to determine whether a state law conviction renders an alien eligible for removal under
narrower than the elements of the generic removability offense under federal law, while ignoring the particular facts of the case. See id. A state offense is a categorical match with a generic federal offense only if a conviction of the state offense would necessarily involve proving facts that would establish a violation of the generic federal offense. See Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). When comparing statutes under the categorical approach, courts only look to the statutory definitions; “[a]n alien‘s actual conduct is irrelevant to the inquiry.” Mellouli, 135 S. Ct. at 1986. A court thus “must presume that the conviction rested upon nothing more than the least of the acts criminalized” and determine whether those acts correspond to the generic federal offense referenced in the removal statute. Moncrieffe, 569 U.S. at 190-91 (internal quotation marks, brackets, and citation omitted). This “requires more than the application of legal imagination to a state statute‘s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). To show a realistic probability, the alien must demonstrate “that the State actually prosecutes” the non-generic offense. Moncrieffe, 569 U.S. at 206.
1. Categorical Match Between the Oklahoma and Federal Schedules
Vazquez argues that BIA‘s conclusion that the Oklahoma statute categorically matched the federal statute was erroneous because the BIA improperly applied the categorical approach. Where a state statute criminalizes offenses that fall outside of the federal generic definition, there is not a categorical match. See Moncrieffe, 569 U.S. at 190, 206. In that case, the noncitizen would not be eligible for mandatory removal. Id. at 204.
The BIA failed to find any differences between “the controlled substances listed in Oklahoma‘s Schedule II, Part B” and “the controlled substances listed in Schedule II of the Federal controlled substances,” and it concluded that Oklahoma‘s statute categorically matched its federal counterpart. The BIA erred in this conclusion. The breadth of the Oklahoma schedules facially extends beyond those substances that are controlled under federal law. Specifically, the Oklahoma schedules contain at least two substances (Salvia Divinorum and Salvinorin A) that are not included in any federal schedule. Compare Okla. Stats. Ann. tit. 63, §§ 2-204, 2-206, with
The Government argues that while there are differences between the Oklahoma and federal schedules, this Court may still find a categorical match under the modified categorical approach. Thus, according to the Government, this Court may affirm the BIA‘s decision because the Oklahoma statute is divisible. Where a statute of conviction is divisible, by listing elements in the alternative, a court may apply the modified categorical approach. Mathis, 136 S. Ct. at 2249; Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). The modified categorical approach applies to “state statutes that contain several different crimes, each described separately.” Moncrieffe, 569 U.S. at 191. And the modified categorical approach “permits a court to determine which statutory phrase was the basis for conviction.” Descamps, 133 S. Ct. at 2285 (quoting Johnson v. United States, 559 U.S. 133, 144 (2010)). In these cases, “a court may determine which particular offense the noncitizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea.” Moncrieffe, 569 U.S. at 191 (citation and internal quotation marks omitted). Specifically, the Government argues that the statute is divisible because the specific controlled substance is an element of the Oklahoma statute of conviction.
Employing the modified approach in this case, however, would extend beyond the proper scope of this Court‘s review. Review of BIA decisions is confined to the BIA‘s analysis and reasoning; this Court may “usually only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States.” Enriquez-Gutierrez, 612 F.3d at 407 (citing Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981)); see also Esquivel v. Lynch, 803 F.3d 699, 701 n.1 (5th Cir. 2015). Affirmance would be appropriate only in cases of harmless error, “where there is no realistic possibility that, absent the errors, the . . . BIA would have reached a different conclusion.” Enriquez-Gutierrez, 612 F.3d at 407 (internal quotation marks and citation omitted). But Vazquez contested the issue of whether the modified approach was proper in his case. He argued on appeal to the BIA that “his Oklahoma
In limiting its review to Schedule II, rather than reviewing Schedules I and II under Oklahoma and federal law, the BIA erred in its application of the categorical approach. The categorical approach required comparing the Oklahoma statute to its federal analog. In this case, because the Oklahoma statute criminalized controlled substances on Schedule I and II, the BIA should have compared both Schedules I and II. We find that the
2. The Realistic Probability Test
The controversy in this case centers on the applicability of the “realistic probability test” developed in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007). The “realistic probability test” qualifies the categorical approach. Moncrieffe, 133 S. Ct. at 1684-85. In order to show that the state statute is broader than the generic definition of a crime, there must be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition.” Duenas-Alvarez, 549 U.S. at 193. The alien must “point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Id.
Although the BIA concluded that the Oklahoma conviction was facially a categorical match, the BIA further reasoned, relying on the BIA case Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014), that a categorical match was presumed unless Oklahoma “actually prosecutes cases involving substances not on the federal schedule.” In Matter of Ferreira, an alien pleaded guilty to the sale of unspecified illegal narcotics in violation of Connecticut law, and the DHS charged him with removability. 26 I. & N. Dec. at 415-16. The alien argued that he was not eligible for removal because the Connecticut drug schedules included two opiate derivatives not included in any federal schedule. Id. at 416-17. The BIA noted that because the federal drug schedules “change frequently, they often do not match State lists of controlled substances, which are found in statutes and regulations that are amended with varying frequency.” Id. at 418. Thus, “the application of the realistic probability test is necessary to prevent the categorical approach from eliminating the immigration consequences for many State drug offenses, including trafficking crimes.” Id. at 421. The BIA held that:
[W]here a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of
removability under the categorical approach.
Vazquez argues that applying the realistic probability test in this manner ignores “the very language of [the] statute” and places an unfair burden on aliens by requiring that they “provide additional corroboration to show that a state actually enforces [its] black-letter law.” The Government contends that the realistic probability test requires Vazquez to demonstrate that Oklahoma actually prosecutes individuals for non-federally controlled substances, which Vazquez failed to do.
The application of the realistic probability test is largely unsettled. Neither the Supreme Court nor this Circuit have extended the realistic probability test to immigration cases involving controlled substances. See, e.g., Mellouli, 135 S. Ct. at 1988 (finding that a drug-paraphernalia conviction did not render an alien deportable because his conviction was not limited to substances controlled under federal law). Other circuits have held that a statute‘s plain meaning is dispositive; where a state statute is facially overbroad compared to a corresponding federal statute, there is a realistic probability that the state will apply its statute to conduct that falls outside the generic definition.4
However, this Court sitting en banc recently determined that “without supporting state case law, interpreting a state statute‘s text alone is simply not enough to establish the necessary ‘realistic probability.‘” Castillo-Rivera, 853 F.3d at 223 (citing Duenas-Alvarez, 549 U.S. at 193). In Castillo-Rivera, the court considered and rejected the argument that a Texas statute was not an aggravated felony under the Sentencing Guidelines because Texas‘s offense was broader than its federal counterpart. Id. at 224-25. The rule adopted in Castillo-Rivera is clear in its breadth: “a defendant must point to an actual state case applying a state statute in a nongeneric manner, even where the state statute may be plausibly interpreted as broader on its face.” Id. at 224 n.4. Castillo-Rivera thus extends to the circumstances of this case, and we are bound by that decision.
Castillo-Rivera leaves just one path for Vazquez, which his brief fails entirely to pursue on appeal. Having never suggested that the realistic probability test is satisfied here, Vazquez has waived the only viable argument.
III. CONCLUSION
For the foregoing reasons, the petition for review is DENIED.