Decarvalho v. Garland

• Docket Number: 20-1711
• Decision Date: 17 November 2021
• Parties: JANITO DECARVALHO, Petitioner, v. MERRICK B. GARLAND, [*] Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

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JANITO DECARVALHO, Petitioner, v. MERRICK B. GARLAND, ^[*] Attorney General, Respondent.

No. 20-1711

United States Court of Appeals, First Circuit

November 17, 2021

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Trina Realmuto, with whom Tiffany Lieu, National Immigration Litigation Alliance, Jennifer Klein, and Committee for Public Counsel Services were on brief, for petitioner.

Marie V. Robinson, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, Cindy S. Ferrier Assistant Director, Office of Immigration Litigation, and Andrew N. O'Malley, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Lynch, Lipez, and Kayatta, Circuit Judges.

KAYATTA, CIRCUIT JUDGE

The Board of Immigration Appeals (BIA) held that Janito DeCarvalho's conviction for possession of oxycodone with intent to distribute in violation of Mass. Gen. Laws ch. 94C § 32A(a), constitutes a "particularly serious crime" that makes him ineligible for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). The BIA also denied DeCarvalho's application for deferral of removal under the Convention Against Torture (CAT). DeCarvalho petitions for review of the BIA's decisions principally arguing that the Attorney General's decision in Matter of Y-L- unlawfully presumes that all aggravated felonies involving trafficking in controlled substances are particularly serious crimes. See 23 I. &N. Dec. 270, 274-75 (U.S. Att'y Gen. 2002). We deny his petition for review insofar as he seeks CAT relief. We grant the petition in part, however, because the immigration judge (IJ) informed DeCarvalho, who was proceeding pro se, that he was eligible for potential relief only under the CAT. In so doing, the IJ treated DeCarvalho's conviction for drug trafficking as if it were a per se bar to withholding of removal, a position that the government now disavows on appeal. We remand to the agency with instructions to give DeCarvalho a new hearing to determine whether he is entitled to withholding of removal.

I.

DeCarvalho is a native and citizen of Cape Verde. Between 2001 and 2003, DeCarvalho served as an officer in Cape Verde's national police force. In 2004, DeCarvalho left Cape Verde and came to the United States on a tourist visa. After his visa expired, DeCarvalho remained in the United States and was granted conditional permanent resident status in 2012. In 2015, DeCarvalho was convicted in state court of several offenses, including possession with intent to distribute oxycodone in violation of Mass. Gen. Laws ch. 94C, § 32A(a). He was sentenced to three and a half years' imprisonment.

Citing his oxycodone conviction as a basis for removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), the Department of Homeland Security initiated removal proceedings against DeCarvalho approximately two years after he completed his prison term. DeCarvalho appeared pro se before an IJ. The IJ informed DeCarvalho that "because of [his] drug trafficking conviction, [he was] only eligible to apply for . . . deferral under the [CAT]."

The IJ held a hearing on DeCarvalho's application for deferral of removal under the CAT. After DeCarvalho and his brother testified, the IJ confirmed his earlier pronouncement that DeCarvalho's prior conviction rendered him ineligible for any relief other than deferral of removal under the CAT. As to the matter of withholding from removal, the IJ found that DeCarvalho had been convicted of a "particularly serious crime" under 8 U.S.C. § 1231(b)(3)(B)(ii), rendering him ineligible to apply for withholding.

The IJ then analyzed whether DeCarvalho was eligible for deferral of removal under the CAT. DeCarvalho claimed that he faced potential harm from several sources: members of a criminal organization seeking retribution against his sister for testifying against them; criminals whom DeCarvalho had arrested when he worked as a police officer; and his former supervisors in the police force. Finding him credible, the IJ nevertheless concluded that DeCarvalho had not shown that it was more likely than not that he would be tortured by or with the acquiescence of government officials upon returning to Cape Verde.

Still proceeding pro se, DeCarvalho appealed to the BIA. The BIA adopted and affirmed the IJ's decision denying CAT relief. Citing Matter of Y-L-, the BIA also found that "[t]he conviction for a drug trafficking offense is also a particularly serious crime barring the respondent from withholding of removal." DeCarvalho then filed a timely petition for review with this court.

Now represented by counsel, DeCarvalho makes two basic arguments that we will consider in turn: that the IJ and the BIA erred in finding that his prior conviction rendered him ineligible for withholding; and that the IJ and BIA also erred in denying his request for CAT protection.^[1] We have jurisdiction to review the constitutional and legal questions raised in this petition. 8 U.S.C. § 1252(a)(2)(D).

II.

A.

A noncitizen is ineligible for withholding of removal "if the Attorney General decides" that the noncitizen, "having been convicted by a final judgment of a particularly serious crime[, ] is a danger to the community of the United States." 8 U.S.C. § 1231(b)(3)(B)(ii). The statute further provides that:

[A]n 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 the sentence imposed, an alien has been convicted of a particularly serious crime.

Id. § 1231(b)(3) (B). The definition of "aggravated felony" includes "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).

DeCarvalho does not dispute that his drug trafficking conviction satisfies this definition of an "aggravated felony." And the government agrees that because DeCarvalho was sentenced to fewer than five years of imprisonment, his conviction does not qualify automatically as a particularly serious crime under the first sentence of the text block-quoted above. So the key question is whether the Attorney General has lawfully determined that notwithstanding the length of DeCarvalho's sentence, his aggravated felony conviction is for a "particularly serious crime."

The BIA answered "yes" to this question by pointing to the Attorney General's opinion in Matter of Y-L-, which established a presumption that an aggravated felony involving drug trafficking is a particularly serious crime even if it does not result in a sentence of five or more years. 23 I. &N. Dec. at 273-75. That presumption may only be rebutted by a showing of "extraordinary and compelling circumstances." Id. at 274. Specifically, the noncitizen must show that the felony conviction in question involved, "at a minimum":

(1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the alien in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense; (5) the absence of any organized crime or terrorist organization involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles.

Id. at 276-77.

DeCarvalho argues that Matter of Y-L- represents an unreasonable interpretation and application of the Attorney General's authority under section 1231(b)(3)(B), and therefore cannot be sustained as a matter of deference otherwise due under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). DeCarvalho's argument proceeds in two parts. First, he contends that Matter of Y-L- effectively operates as a per se rule rather than a presumption. After all, he notes, the government does not point to even a single instance in which the so-called presumption has been overcome.^[2] Second, DeCarvalho argues that the first sentence of section 1231(b)(3)(B) limits the universe of offenses that may be treated as per se particularly serious crimes to aggravated felonies resulting in sentences of imprisonment of five or more years. Because DeCarvalho was sentenced to fewer than five years, he contends that the Attorney General lacks the authority to treat him as per se ineligible for withholding of removal.

In response, the government eschews any contention that the Attorney General has the discretion under section 1231(b)(3)(B)(ii) to determine that convictions for drug trafficking are categorically convictions for particularly serious crimes if the term of imprisonment falls short of five years. Rather, the government argues only that Matter of Y-L- merely provides a strong presumption that nevertheless can be overcome through individualized determinations. And, it explains, creating a strong but rebuttable presumption is a reasonable application of the statute. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 948 (9th Cir. 2007) (holding that the authority to create this presumption is a reasonable interpretation of the statute).

Consistent with that position, the government agrees with DeCarvalho's alternative argument; i.e., that if Matter of Y-L- does not effectively categorize all drug trafficking convictions as convictions for particularly serious crimes, then the IJ erred in telling the pro se DeCarvalho prior to any...