Oral Agustas SWABY, Petitioner, v. Sally Q. YATES, Acting Attorney General of the United States, Respondent.
No. 16-1821
United States Court of Appeals, First Circuit.
January 30, 2017
* Pursuant to Fed. R. App. 43(c)(2), Sally Q. Yates. has been substituted for Loretta E. Lynch as Attorney General.
II. CONCLUSION
The district court reached the proper outcome as to each of the merits issues before us on appeal, and we find no abuse of discretion in its management of discovery. We affirm the judgment in full. Costs are awarded to Pfizer.
Jessica E. Burns, Washington, DC, with whom Rachel L. Browning, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Keith McManus, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Before BARRON, STAHL, LIPEZ, Circuit Judges.
BARRON, Circuit Judge.
Oral Swaby, a citizen of Jamaica, petitions for review of a decision of the Board of Immigration Appeals (“BIA“) affirming his order of removal and denying his request for cancellation of removal. We dismiss in part and deny in part the petition.
I.
Swaby lawfully entered the United States on a tourist visa in May 1996, and he adjusted to lawful permanent resident status on May 14, 2010. On September 4, 2013, Swaby pled nolo contendere in Rhode Island Superior Court to three counts of manufacturing, delivering, or possessing with intent to distribute a controlled substance to wit, marijuana—in violation of
That provision of federal immigration law authorizes the removal of an alien convicted of a violation of any federal or state law “relating to a controlled substance (as defined in section 802 of Title 21).” Section 802 of Title 21 limits the term “controlled substance” to a “drug or other substance” included in one of the five federal drug schedules.
Swaby initially chose to appear pro se before the Immigration Judge (“IJ“), whereupon Swaby admitted the allegations contained in the NTA, accepted an order of removal, and waived his right to appeal the IJ‘s decision. But, on July 29, 2015, with the assistance of counsel, Swaby filed a motion to stay his removal and to reopen and terminate removal proceedings. He contended that, pursuant to Mellouli v. Lynch, — U.S. —, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015), which had been decided in January of that year, his Rhode Island convictions did not qualify as removable offenses under
On August 26, 2015, the IJ determined that Swaby was removable under
Swaby now petitions for review of the BIA‘s decision. We have jurisdiction to review the BIA‘s May 2016 decision to dismiss Swaby‘s appeal of the IJ‘s decision pursuant to
II.
As we have noted, the record shows that the “controlled substance” that Swaby was convicted of manufacturing, delivering, or possessing with intent to distribute was marijuana, which is listed on the federal controlled substances schedules. The BIA‘s conclusion that Swaby‘s state convictions qualified as convictions for predicate offenses under
The complications have to do with the breadth of the Rhode Island drug schedules—and thus with the breadth of the Rhode Island crime at issue. Specifically, the Rhode Island drug schedules included at the relevant time at least one drug—thenylfentanyl—not listed on the federal drug schedules. Compare
The breadth of the Rhode Island offense potentially matters because Mellouli makes clear that the categorical approach “looks to the statutory definition of the offense of conviction, not to the particulars of the alien‘s behavior.” 135 S.Ct. at 1986. Accordingly, under
Nevertheless, the BIA ruled that the breadth of the Rhode Island offense was of no moment under the categorical approach. The BIA did so based on its decision in Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014). There, the BIA ruled that, under Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), a noncitizen must show that there is a “realistic probability” that the state actually would prosecute cases involving any substances listed on state drug schedules that are not listed on the federal schedules. Id. at 421-22. Absent that showing, the BIA held, the state controlled substances offense should be treated as if it did fall within the federally defined crime under
Deploying this same logic, the BIA explained in this case that Swaby had failed to show that there was a realistic probability that Rhode Island would actually prosecute offenses under
Swaby contends on appeal that Duenas-Alvarez does not support the BIA‘s conclusion. And we agree. Duenas-Alvarez made no reference to the state‘s enforcement practices. It discussed only how broadly the state criminal statute applied. In doing so, Duenas-Alvarez does make clear that to find that a state statute proscribes a broader range of conduct than a federal crime “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 federal definition of the crime. Duenas-Alvarez, 549 U.S. at 193. But, that sensible caution against crediting speculative assertions regarding the potentially sweeping scope of ambiguous state law crimes has no relevance to a case like this. The state crime at issue clearly does apply more broadly than the federally defined offense. Nothing in Duenas-Alvarez, therefore, indicates that this state law crime may be treated as if it is narrower than it plainly is. Nor are we aware of any circuit court case, whether from this circuit or from any other, that supports the BIA‘s surprising view that, in applying the categorical approach, state law crimes should not be given their plain meaning.2
Simply put, the plain terms of the Rhode Island drug schedules make clear that the Rhode Island offense covers at least one drug not on the federal schedules. That offense is simply too broad to qualify as a predicate offense under the categorical approach, whether or not there is a realistic probability that the state actually will prosecute offenses involving that particular drug. See Mellouli, 135 S.Ct. at 1986.
III.
The government does make a fallback argument, in which it asks us to uphold the BIA‘s decision on a different ground. The government argues that, under what is known as the “modified categorical approach,” Swaby‘s state law convictions do qualify as predicates for removal under
In pressing this argument, the government points out that, as Mellouli itself makes clear, the categorical approach gives way to the “modified categorical approach” when the state law offense “contain[s] several different crimes, each described separately.” Mellouli, 135 S.Ct. at 1986 n.4 (quoting Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013)). In such 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, 133 S.Ct. at 1684 (internal quotation marks omitted). And, in cases of that sort, if the adjudicator can determine from those records the particular state law offense for which the noncitizen was convicted, then the adjudicator need only determine whether that particular state law offense falls within the predicate federal offense under
The government contends that we should apply the modified categorical approach to
Swaby‘s sole response is that Rhode Island law does not make the particular listed drug involved in the commission of an offense under
In Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2256-57, 195 L.Ed.2d 604 (2016), the Supreme Court recently provided guidance about how to resolve the elements versus means issue that determines whether the modified categorical approach applies to a state criminal statute. And here the factors Mathis instructs us to consider lead us to reject Swaby‘s view.
We start with how the Rhode Island Supreme Court has construed the offense. See Mathis, 136 S.Ct. at 2256 (explaining that the “threshold inquiry—elements or means?—is easy” where “a state court decision definitively answers the question“). In State v. Feng, 421 A.2d 1258 (R.I. 1980), the Rhode Island Supreme Court expressly described the particular type of controlled substance listed in the state drug schedules as an element of an offense under
Feng explained that a Rhode Island trial court can establish an adequate factual basis for a plea by reading the indictment to the defendant, but only if, among other things, “the elements of the crime are clearly set out.” Id. at 1270 (quoting Seiller v. United States, 544 F.2d 554, 565 (2d Cir. 1975)). Yet, Feng noted, in the case at hand, the trial judge had “merely summarized the charge as ‘knowledge and intent to possess a controlled substance.‘” Id. at 1270-71. Feng then ruled that this summary did not suffice to supply the factual basis for the guilty plea precisely because the “[r]eference to ‘a controlled substance’ does not by itself set out the elements of the offense of possession of the particular controlled substance LSD.” Id. at 1271.3 Moreover, other Rhode Island Supreme Court decisions accord with Feng‘s description of the drug‘s type as an element of the offense. See State v. Mendez, 116 A.3d 228, 239 (R.I. 2015) (jury instructions for the crime of possession of a controlled substance specified that “the State must show that the defendant possessed the controlled substance in question“); State v. Jenison, 442 A.2d 866, 875 (R.I. 1982) (possession of a controlled substance requires “intentional control of the designated substance with knowledge of its nature” (emphasis added) (punctuation and citation omitted)).
Our conclusion that this state law crime is divisible by the type of drug also accords with the face of the statute, which is not drafted merely “to offer ‘illustrative examples,‘” Mathis, 136 S.Ct. at 2256, but instead assigns “different punishments,” id. based on the class of a drug, and then “exhaustive[ly]” lists the individual drugs by type on the state drug schedules. Feng, 421 A.2d at 1271; see
Finally, Mathis explains that, even where “state law fails to provide clear answers, federal judges have another place to look: the record of a prior conviction itself.” Mathis, 136 S.Ct. at 2256. “[A]n indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.” Id. at 2257. And the indictment in Swaby‘s case did exactly this, specifying that Swaby manufactured, delivered, or possessed with intent to distribute “a controlled substance, to wit, [m]arijuana.”
Accordingly, we conclude that the modified categorical approach does apply. And Swaby does not dispute that, under the modified categorical approach, the relevant plea documents suffice to make clear that Swaby‘s convictions were for the manufacturing, delivering, or possessing with intent to distribute marijuana. We thus conclude that Swaby‘s convictions clearly do “relat[e] to a controlled substance (as defined in [the federal drug schedules]),” just as
IV.
Swaby next challenges the denial of his motion for cancellation of removal, a discretionary form of relief that may be granted when positive factors weighing against removal outweigh negative factors that counsel in favor of removal. See
We review questions of law de novo, though we accord “some deference to the BIA‘s interpretation of the statutes and regulations that come within its pur
With that background in place, we turn now to the first of Swaby‘s challenges. Swaby contends that the IJ erred as a matter of law in balancing the positive and negative factors in this case by impermissibly considering as a negative factor the fact that Swaby‘s five children have five different mothers. Swaby contends in this regard that, under Matter of C-V-T-, the only negative factors an IJ may consider are the noncitizen‘s immigration and criminal records and matters pertaining to them.
In fact, Matter of C-V-T- is not so strict. 22 I. & N. Dec. at 11 (explaining that noncitizens’ immigration and criminal records are “[a]mong the factors deemed adverse” to them, but so too is “the presence of other evidence indicative of a respondent‘s bad character or undesirability as a permanent resident of this country“). But, of more significance here, the IJ recognized that the fact that Swaby has five children in the United States was a positive factor. The IJ thus referenced the fact that Swaby‘s children had different mothers not as a negative factor but only in the course of evaluating the strength of Swaby‘s ties to those children. The evaluation of the strength of those ties falls well within the IJ‘s discretion to assess the strength of a positive factor. There is thus no basis in the record for Swaby‘s assertion of legal error.
Swaby next contends that the IJ erred by “entirely fail[ing] to consider” the hardship that would befall two of Swaby‘s children if Swaby were removed. This contention fails to present a colorable legal challenge over which we have jurisdiction. For even if a complete failure to consider such hardship constitutes a legal error, cf. Elysee, 437 F.3d at 223-24 (holding that a petition for review based on “the IJ‘s supposed ‘complete[] disregard[]’ for the hardships that will be faced by [petitioner‘s] children if he is deported” raised no question of law); Mele v. Lynch, 798 F.3d 30, 32 (1st Cir. 2015) (“[W]here Congress has enacted a jurisdictional wall, an alien cannot scale it simply ‘by relitigat[ing] whether the factors relevant to [the] discretionary relief were appropriately weighed by the IJ and the BIA.‘” (quoting Urizar-Carrascoza v. Holder, 727 F.3d 27, 32 (1st Cir. 2013) (modifications in original))), there is no colorable argument that such a failure occurred here.
The record reveals that the IJ identified hardship to Swaby‘s family as a positive factor and considered all of the exhibits that Swaby submitted, including Swaby‘s affidavit and affidavits from family members and friends, as well as Swaby‘s testimony, noting that Swaby had expressed “particular concern” about the hardship that would befall one of Swaby‘s children. The IJ then stated that it had weighed the positive factors against the negative factors. No more was required. See Telyatitskiy v. Holder, 628 F.3d 628, 631 (1st Cir. 2011) (holding that where “[t]he record reveals that the IJ considered the totality of the evidence presented,” the IJ does not err “merely by failing to address specifically each piece of evidence the petitioner presented“). For these reasons, Swaby‘s petition for review of the IJ‘s denial of Swaby‘s request for cancellation of removal is dismissed.
In light of the foregoing, the petition for review is denied in part and dismissed in part.
Peter ALFANO, Plaintiff, Appellant, v. Thomas LYNCH, Defendant, Appellee.
No. 16-1914
United States Court of Appeals, First Circuit.
February 1, 2017
Notes
Reference to “a controlled substance” does not by itself set out the elements of the offense of possession of the particular controlled substance LSD. The list of controlled substances contained in chapter 28 of title 21 is exhaustive. Unlawful possession of more than one controlled substance constitutes a separate offense for each such substance possessed. We note also that at the time of Feng‘s arrest, several controlled substances were seized from his dormitory room, and the indictment itself charged Feng with possession of another controlled substance—cocaine. In light of the wide range of substances classified as “controlled“, we conclude that the trial justice‘s summary of the charge did not constitute a straightforward statement of the facts underlying the offense of possession of LSD. Feng, 421 A.2d at 1271.