IVAN ALEXANDROVICH VETCHER, Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent
No. 18-60449
United States Court of Appeals for the Fifth Circuit
March 19, 2020
Petition for Review of an Order of the Board of Immigration Appeals
Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.
Petitioner Ivan Vetcher (“Vetcher“) contests his detention and removal pursuant to
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
Vetcher is a 29 year-old native of Belarus whose family fled to the United States in 2001 as refugees; he was 11 years old at the time. He became a lawful resident in 2005 at the age of 15. He is married to an American citizen with whom he shares a 5 year-old son and two step-children from his wife‘s previous relationship. In 2009, 2011, and 2012, Vetcher was arrested on charges including burglary, obstruction of justice, and obstructing police. In April 2014, Vetcher was arrested for selling psychedelic/hallucinogenic mushrooms. Vetcher pled guilty to two counts of “deliver[ing], by actual transfer, constructive transfer and offer to sell to another, a controlled substance, namely, psilocybin/psilocin, in an amount of four grams or more but less than 400 grams,” pursuant
On July 2, 2014, the Department of Homeland Security (“DHS“) personally served Vetcher with a notice to appear (“NTA“). It notified Vetcher of his removability based upon the April 2014 drug trafficking conviction and ordered him to appear at removal proceedings before an IJ in Dallas, Texas, on a “date and time to be set.” Vetcher was detained pending his removal proceedings, and the NTA was filed with the immigration court on July 8, 2014. On July 10, 2014, the immigration court issued Vetcher a “notice of hearing” scheduling his initial hearing before the IJ for July 17, 2014 at 8:30 a.m.
B. Procedural History
The DHS charged Vetcher with deportability as an alien charged with an “aggravated felony.” In its August 6, 2014 decision, the IJ sustained the aggravated felony charge and found Vetcher ineligible for asylum and withholding of removal on the basis that the aggravated felony charge was a “particularly serious crime.” Filing pro se, Vetcher appealed that decision to the BIA. The BIA dismissed the appeal in December 2014, holding that the aggravated felony drug charge was indeed a particularly serious crime which prevented Vetcher from seeking asylum and withholding of removal. Still proceeding pro se, Vetcher then sought relief from this court when he filed a petition for stay of removal pending review in January 2015. A couple of months later in March 2015, Vetcher filed a motion to re-open his case with the BIA.
On April 9, 2015, this court granted Vetcher‘s petition to stay the removal pending review, holding that “a Texas conviction for delivery of a controlled substance by offering to sell is not categorically an ‘aggravated felony,’ as defined by the INA because it penalizes conduct that does not amount to a felony under the Controlled Substances Act.” Vetcher v. Holder, No. 15-60047, Slip Op. (5th Cir. Apr. 9, 2015). On June 25, 2015, the BIA sua sponte re-opened and remanded the proceedings back to the IJ for reconsideration of Vetcher‘s status as an alien convicted of an aggravated felony. After the proceedings were remanded, the government withdrew the aggravated felony charge and asserted a different basis for removal—
In its October 27, 2015 decision on remand, the IJ denied Vetcher‘s petition for withholding of removal and cancellation of removal because, after balancing the equities, it found that Vetcher‘s admitted drug trafficking and no signs of “real rehabilitation” from that conduct outweighed the fact that he was remorseful for his drug trafficking and that he has family in the United States. Vetcher appealed this decision to the BIA again, as a pro se litigant.
In its November 8, 2016 decision, the BIA affirmed in part the IJ‘s findings that Vetcher‘s 2014 conviction under
II. STANDARD OF REVIEW
“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.” Vazquez v. Sessions, 885 F.3d 862, 870 (5th Cir. 2018) (citing Danso v. Gonzales, 489 F.3d 709, 712–13 (5th Cir. 2007)); cf. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009) (“[T]his court accords deference to the BIA‘s interpretation of immigration statutes unless the record reveals compelling evidence that the BIA‘s interpretation is incorrect.“). Though our review is generally limited to the BIA‘s decision, we may also review the IJ‘s decision when it influences the BIA‘s decision or where the BIA has adopted all or part of the IJ‘s reasoning. Le v. Lynch, 819 F.3d 98, 104 (5th Cir. 2016).
III. DISCUSSION
A. Though Vetcher‘s state law conviction is not a facial categorical match to the federal schedule of controlled substances, there is no realistic probability that Texas courts will apply its statute to conduct that falls outside of the scope of the federal analog.
Vetcher argues that his state law conviction is not a categorical match to the federal schedule of controlled substances because there are at least 43 substances in Penalty Group 2-A that were not on any federal schedule at the time of his conviction. To determine if a state law conviction renders an alien eligible for removal under the INA, courts apply the categorical approach. Vazquez, 885 F.3d at 870. As explained in Vazquez:
The categorical approach analyzes whether the elements of the state conviction are the same as or narrower than the elements of the generic removability offense under federal law, while ignoring the particular facts of the case. 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, 133 S. Ct. 1678, 185 L.Ed.2d 727 (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 v. Lynch, 135 S. Ct. 1980, 1986 (2015)]. 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, 133 S. Ct. 1678 (internal quotation marks, brackets, and citation omitted).
However, if “a state statute criminalizes offenses that fall outside of the federal generic definition, there is not a categorical match.” Id. at 871. “If there is a categorical match between the predicate
We are not satisfied that there is a categorical match between
But, the inquiry does not stop there. To show that the Texas statute is broader than its federal counterpart, Vetcher must also show “a realistic probability” that Texas will prosecute the “conduct that falls outside the generic definition of a crime.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). To do so, the detainee 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.” Vazquez, 885 F.3d at 873; see United States v. Castillo-Rivera, 853 F.3d 218, 223 (5th Cir. 2017) (en banc) (“[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.“).
Vetcher has not identified case law demonstrating a realistic probability that Texas would apply
Again, “to successfully argue that a state statute is nongeneric, a defendant must provide actual cases where state courts have applied the statute in that way.” Castillo-Rivera, 853 F.3d at 223. Because Carter is still pending in Texas courts, it necessarily is not settled law within the state which, in turn, does not make it reliable in this context. Reliance on a brief filed in that case is not the law. Nothing Vetcher has provided demonstrates a realistic probability that the courts in Texas will apply
B. Vetcher is Ineligible for Withholding of Removal because his State Law Conviction is a “Particularly Serious Crime” within the meaning of the Statute
Vetcher contests the determination that he was convicted of a particularly serious crime because his conviction was found to not be an aggravated felony. In his view, the term “particularly serious crime” is limited to aggravated felonies. We disagree.
For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.
Vetcher contends that the above clarifying language (1) limits particularly serious crimes to aggravated felonies with a minimum five-year prison term and (2) limits the Attorney General‘s discretion to determine other particularly serious crimes to aggravated felonies with prison terms up to five years in length. The government counters that a crime need not be an aggravated felony in order to be a “particularly serious crime.” Specifically, the government argues that the first sentence in the statutory language that clarifies the second clause of
The First, Second, Fourth, Seventh, Ninth, and Tenth Circuits have all held that the phrase “particularly serious crime” is not limited to aggravated felonies, and have all said that determining whether a non-aggravated felony offense is a “particularly serious crime” should be done on a case-by-case basis. E.g., Valerio-Ramirez v. Sessions, 882 F.3d 289, 296–97 (1st Cir. 2018); Delgado v. Holder, 648 F.3d 1095, 1104 (9th Cir. 2011); Gao v. Holder, 595 F.3d 549, 554 (4th Cir. 2010); N-A-M- v. Holder, 587 F.3d 1052, 1056 (10th Cir. 2009); Nethagani v. Mukasey, 532 F.3d 150, 156–57 (2d Cir. 2008); Ali v. Achim, 468 F.3d 462, 470 (7th Cir. 2006). Most recently, the Third Circuit, sitting en banc, overruled its decision in Alaka v. Att‘y Gen., 456 F.3d 88 (3d Cir. 2006), when it held that, in the context of withholding of removal, “both aggravated felonies and other offenses can be particularly serious crimes.” Bastardo-Vale v. Att‘y Gen., 934 F.3d 255, 267 (3d Cir. 2019) (en banc).
In Bastardo-Vale, the Third Circuit was tasked with interpreting the phrase “particularly serious crime” within the context of the asylum statute and the withholding of removal statute, both of which are codified in the INA. See
Likewise, we also agree with the Bastardo-Vale en banc court that Congress‘s use of the terms “aggravated felony” and “particularly serious crime” was intentional and should be given their separate meanings. Bastardo-Vale, 934 F.3d at 266. If Congress intended otherwise, then it would have not included the term alongside “aggravated felony.” See id. (“To say that only aggravated felonies are ‘particularly serious crimes’ would render the words ‘particularly serious crime’ surplusage.“). Accordingly, we conclude that Vetcher is ineligible for withholding of removal because the IJ‘s determination, along with the BIA‘s affirmance, that Vetcher was convicted of a “particularly serious crime” was not error.
C. Vetcher‘s Due Process Rights Were Not Violated
“[T]he Fifth Amendment entitles aliens to due process of law in deportation
Vetcher argues that he has satisfied Lewis by showing that he was prejudiced in his pursuit of withholding and, later, cancellation of removal. Specifically, he contends that he complained on numerous occasions about the deficiency of the detention facility‘s law library while he was detained. He argues that his pro se efforts to challenge his detention, the finding of his removability, and the finding that he was ineligible for cancellation for removal were hampered by the absence of
As a pro se litigant, Vetcher successfully secured an initial stay of removal from this court. Two separate BIA decisions remanded his proceedings back to the IJ. He also preserved all relevant issues for appeal. Vetcher‘s intermittent successes throughout the course of his pro se efforts are beyond admirable. None of the perceived hindrances Vetcher points out stopped him from being able to research the law, draft, mail and file his pleadings, and appeal his claims for the better part of four years without the assistance of legal counsel. Implicitly, Vetcher argues that since he did not win on his claims (specifically the categorical match argument) and because those materials were unavailable, that there was a due process violation. To his detriment, that is not the legal standard. Accordingly, we find no due process violation here.
IV. CONCLUSION
For the aforementioned reasons, we DENY Vetcher‘s petition for cancellation of removal.