Bah v. Barr

• Decision Date: 13 February 2020
• Docket Number: No. 18-2106,No. 18-1877,18-1877
• Parties: Hassan BAH, Petitioner, v. William P. BARR, Attorney General, Respondent. Hassan Bah, Petitioner, v. William P. Barr, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

950 F.3d 203

Hassan BAH, Petitioner,

v.William P. BARR, Attorney General, Respondent.

Hassan Bah, Petitioner,

v.William P. Barr, Attorney General, Respondent.

No. 18-1877

No. 18-2106

United States Court of Appeals, Fourth Circuit.

Argued: September 18, 2019

Decided: February 13, 2020

ARGUED: Bryan James Harrison, BRYAN CAVE LEIGHTON & PAISNER LLP, Washington, D.C., for Petitioner. Christopher Alan Bates, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Rodney F. Page, Colin S. Harris, BRYAN CAVE LEIGHTON PAISNER LLP, Washington, D.C.; Claudia R. Cubas, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General, Linda S. Wernery, Assistant Director, Walter Bocchini, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before THACKER, RICHARDSON, and RUSHING, Circuit Judges.

No. 18-1877, petition dismissed; No. 18-2106, petition denied by published opinion. Judge Rushing wrote the majority opinion, in which Judge Richardson joined. Judge Thacker wrote a dissenting opinion.

RUSHING, Circuit Judge:

Federal immigration law makes aliens who have been convicted under "any law ... of a State ... relating to a controlled substance (as defined [by federal law] )" removable—that is, subject to deportation. 8 U.S.C. § 1227(a)(2)(B)(i). The question in this case is whether Petitioner’s conviction for possession of ethylone, a substance illegal under both Virginia and federal law, renders him removable even though Virginia’s controlled substance statute is broader than its federal counterpart. We hold that it does and so deny his petition for review.

I.

Petitioner Hassan Bah is a native and citizen of Sierra Leone. He entered the United States as a child in 1999 on a temporary visitor visa. When the visa expired, Bah stayed in the United States. Overstaying his visa rendered Bah removable, but because he is now married to an American citizen, Bah could apply for an adjustment of status to prevent his deportation. Such an adjustment is unavailable, however, if Bah is also removable because he committed a qualifying controlled substance offense.

In December 2015, a Virginia grand jury indicted Bah for possession of "3,4-methylenedioxymethamphetamine (MDMA)," as well as possession of marijuana. Forensic testing later revealed that the substance believed to be MDMA was in fact "3,4-methylenedioxyethcathinone (ethylone)." Ethylone is a chemically similar variant of MDMA that is listed separately from MDMA on Schedule I of Virginia’s controlled substance schedules. See Va. Code § 54.1-3446. It is undisputed that ethylone, a positional isomer of butylone, qualifies as a Schedule I controlled substance under federal law, as does MDMA. See 21 C.F.R. § 1308.11(d)(62) (butylone); 21 C.F.R. § 1308.11(d)(11) (MDMA) ; see also Oral Arg. at 21:44–23:10, 33:10–33:43.

After the forensic testing, Bah’s indictment was amended by striking the reference to MDMA and handwriting "3,4-methylenedioxyethcathinone (ethylone)" in its place. A.R. 261. The word in parentheses in the handwritten amendment is unclear and could be read as "ethylene." A bench trial was conducted in the Circuit Court of the City of Alexandria, Virginia. The court acquitted Bah of "Possession of Marijuna [sic ]" but found him guilty of "Possession of Ethylene as charged in Count One of the indictment as amended." A.R. 264.¹

The Department of Homeland Security (DHS) subsequently initiated removal proceedings against Bah. DHS alleged that Bah was removable both because he had overstayed his temporary visitor visa and because he had been convicted of felony possession of a controlled substance in violation of Virginia Code § 18.2-250(A)(a). Before the Immigration Judge, Bah conceded that he had overstayed his visa but contested the charge of removability predicated on his conviction for a controlled substance offense. The Immigration Judge deemed Bah removable but noted that she would reconsider her decision if Bah could show that the substance he had been convicted of possessing was not illegal under federal law.

Bah moved for reconsideration, arguing that Virginia law prohibits possession of more substances than federal law and that Virginia law does not make the identity of the particular controlled substance—as opposed to the class of controlled substances—an element of the crime of unlawful possession. The Immigration Judge denied the motion. Bah pressed his argument before the Board of Immigration Appeals, which rejected it in a written decision. The Board ruled that Virginia Code § 18.2-250 is divisible as to the identity of the controlled substance and that the Immigration Judge’s decision to examine the amended indictment to determine that Bah was convicted of possessing a controlled substance as defined by federal law was appropriate. See A.R. 3–7. Bah timely petitioned this Court for review.²

II.

The Courts of Appeals "generally lack jurisdiction to review orders of removal when an alien is removable for a controlled substance conviction," Jaquez v. Sessions , 859 F.3d 258, 260 (4th Cir. 2017) ; see 8 U.S.C. § 1252(a)(2)(C), but we retain jurisdiction to review "constitutional claims or questions of law," 8 U.S.C. § 1252(a)(2)(D). This case raises a question of law: whether a conviction for possessing ethylone under Virginia Code § 18.2-250(A)(a) triggers removal under 8 U.S.C. § 1227(a)(2)(B). We review this question of law de novo. Jaquez , 859 F.3d at 261.

A.

Section 1227(a)(2)(B)(i), a provision of the Immigration and Nationality Act, authorizes the removal of "[a]ny alien who at any time after admission has been convicted of a violation of ... any law or regulation of a State ... 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." 8 U.S.C. § 1227(a)(2)(B)(i). Section 1227(a)(2)(B)(i) incorporates 21 U.S.C. § 802, which defines a "controlled substance" as "a drug or other substance, or immediate precursor," included on one of five federal schedules. 21 U.S.C. § 802(6).

To trigger immigration consequences, an alien’s controlled substance conviction must involve a substance that is included on one of the federal schedules. Mellouli v. Lynch , 575 U.S. 798, 135 S. Ct. 1980, 1987, 1990–1991, 192 L.Ed.2d 60 (2015). When a State’s schedule of controlled substances is coextensive with or narrower than the federal schedules, removability is clear. See Martinez v. Sessions , 893 F.3d 1067, 1070 (8th Cir. 2018). But when a State punishes possession of substances not proscribed by federal law, there is a possibility that the state conviction involves a substance not listed on the federal schedules, in which case the conviction would fall outside the purview of Section 1227(a)(2)(B)(i). See , e.g. , Guillen v. United States Attorney General , 910 F.3d 1174, 1180 (11th Cir. 2018).

"Because Congress predicated deportation on convictions, not conduct," we employ the categorical approach to assess whether a predicate controlled substance offense renders an alien removable. Mellouli , 135 S. Ct. at 1986 (internal quotation marks omitted). Under the categorical approach, we examine "the state statute defining the crime of conviction" and compare it with the relevant federal law—here, the federal controlled substance schedules. Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (internal quotation marks omitted); see also Mathis v. United States, ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ; Taylor v. United States , 495 U.S. 575, 599–600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). If the state statute penalizes conduct not covered by its federal comparator, then the state statute is "overbroad" and, generally speaking, a conviction under that statute cannot be a predicate for immigration consequences. See Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

But finding a state statute overbroad is not always the end of the inquiry. Some overbroad statutes are "divisible"—they set forth multiple crimes, with varying elements—and some of the crimes set forth therein would pass the categorical inquiry if examined on their own. Mathis , 136 S. Ct. at 2249. Courts examining a divisible statute employ the "modified categorical approach," which entails an examination of a "limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. ; see also Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The modified categorical approach "retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime." Descamps , 570 U.S. at 263, 133 S.Ct. 2276. "All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates several different crimes." Id. at 263–264, 133 S.Ct. 2276 (internal alteration and quotation marks omitted) (citing Nijhawan v. Holder , 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) ).

A statute is "indivisible," and thus not amenable to application of the modified categorical approach, if it "sets out a single ... set of elements to define a single crime." Mathis , 136 S. Ct. at 2248. Of course, an indivisible statute may identify alternative means by which a violation of the single enumerated crime can be accomplished. Id. at 2249. Thus, "[t]he first task for a ... court faced with an alternatively phrased statute is ... to determine whether its listed items are elements or means." Id. at 2256. "If they are elements," the court applies the modified categorical approach, "review[ing] the record materials to discover which...