Doe v. Sessions, 16-1256

• Decision Date: 29 March 2018
• Docket Number: No. 16-1256,August Term 2017,16-1256
• Parties: John DOE, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

886 F.3d 203

John DOE, Petitioner,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.

No. 16-1256

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: September 26, 2017

Decided: March 29, 2018

For Petitioner: Whitney Elliott (Seymour James, Jr., Adriene Holder, Maria E. Navarro, Charles Conroy, Ward Oliver, Stacy Taeuber, Julie Dona, on the brief), The Legal Aid Society, New York, NY.

For Respondent: Dana M. Camilleri (Benjamin P. Mizer, Anthony P. Nicastro, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC.

Before: Livingston, Lynch, and Chin, Circuit Judges.

Debra Ann Livingston, Circuit Judge:

Petitioner John Doe, a native and citizen of the Dominican Republic admitted to the United States on September 13, 2007 as a lawful permanent resident, seeks review of an April 13, 2016 decision of the Board of Immigration Appeals ("BIA") dismissing the appeal of an October 22, 2015 decision of an Immigration Judge ("IJ"), which ordered Doe's removal and denied his application for deferral of removal under the Convention Against Torture ("CAT"). See In re John Doe, No. A058 529 649 (B.I.A. Apr. 13, 2016), aff'g No. A058 529 649 (Immig. Ct. N.Y. City Oct. 22, 2015).¹

Doe was found removable based on his conviction in the Southern District of New York for violating the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq . The agency determined that Doe's conviction involved the violation of a United States law "relating to a controlled substance (as defined in [the CSA at] section 802 of Title 21)," 8 U.S.C. § 1227(a)(2)(B)(i), and that his crime constituted a drug trafficking aggravated felony, 8 U.S.C. §§ 1101(a)(43)(B), (U) ; see also 18 U.S.C. § 924(c)(2) (defining "drug trafficking crime" to mean, in relevant part, "any felony punishable under the Controlled Substances Act"). Doe challenges that determination, arguing that his CSA conviction does not "categorically fit[ ] within the ‘generic’ federal definition" of a removable offense, see Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), because the drug schedules in the CSA ("CSA Schedules") at the time of his conviction were broader than the CSA Schedules at the time of his removal proceedings. Doe also challenges the agency's denial of CAT relief. For the reasons set forth below, we conclude that the agency committed a legal error in assessing Doe's claim to CAT relief, but that it did not err in determining that Doe was removable by virtue of his federal drug trafficking conviction. Accordingly, Doe's petition for review is GRANTED in part and DENIED in part.

BACKGROUND

Petitioner John Doe, a native and citizen of the Dominican Republic, was admitted to the United States as a lawful permanent resident in 2007. In 2014, Doe pleaded guilty in the Southern District of New York to one count of conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(C) of the CSA. Doe cooperated with law enforcement upon his arrest in connection with this crime and provided information that helped the government convict the other individuals involved. Certified Administrative Record ("CAR") at 864. He entered his guilty plea pursuant to a cooperation agreement.

After his conviction, Doe was charged as removable under the Immigration and Nationality Act ("INA") for having been convicted of a controlled substance offense, a drug trafficking aggravated felony, and a conspiracy to commit a drug trafficking aggravated felony. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (B)(i) ; id. §§ 1101(a)(43)(B), (U). Before the IJ, Doe admitted the Government's factual allegations but contested removability. He applied for asylum, withholding of removal, and, as relevant here, CAT relief, alleging fear of the co-defendants in his criminal case (because he had cooperated) and of a rival family in the Dominican Republic.

Although Doe's judgment of conviction specifies that he conspired to distribute heroin, the substantive statute underlying his conspiracy renders it a crime to distribute or possess with intent to distribute "a controlled substance," meaning any substance listed in one of the five CSA Schedules. 21 U.S.C. § 841(a)(1) ; see also 21 U.S.C. § 802(6) (defining "controlled substance" for purposes of the CSA). In January 2015, during Doe's removal proceedings, the DEA removed naloxegol from these Schedules. See Schedules of Controlled Substances: Removal of Naloxegol From Control, 80 Fed. Reg. 3468, 3469 (Jan. 23, 2015) (codified at 21 C.F.R. pt. 1308). Doe moved to terminate proceedings on the ground that after naloxegol was removed from the CSA Schedules, his conviction no longer categorically involved a controlled substance, as required for his removal. CAR at 357. That is so, argued Doe, because the Schedules were broader on the date of his conviction than at the time of his removal proceedings (because a person could be convicted of distributing naloxegol in 2014, when Doe was convicted, but not in 2015, when the Schedules were amended). Because of this mismatch, Doe asserted, he was no longer convicted of a crime categorically involving a federally controlled substance and therefore could not be removed on this basis.

The IJ disagreed. In a written decision, the IJ explained that Doe's motion to terminate was properly denied because Matter of Ferreira , 26 I. & N. Dec. 415 (B.I.A. 2014), instructs that a court is to compare the statute of conviction to the CSA Schedules in place at the time of conviction . "In this case," the IJ concluded, "[Doe] was convicted of a crime in violation of the CSA. Thus, at the time of his conviction, he was necessarily convicted of a crime relating to a federally controlled substance." CAR at 102–03. As relevant here, the IJ also denied CAT relief, noting that Doe had conceded that only one of his co-conspirators, a friend who posed no threat, was even aware that he had cooperated, and concluding that Doe failed to demonstrate that he would likely be tortured by his co-defendants or the rival Dominican family if returned to the Dominican Republic. Id. at 104–06.

The BIA dismissed Doe's appeal. As to Doe's argument that his conviction no longer categorically constitutes a crime relating to a controlled substance, the BIA agreed with the IJ that "the proper approach is to compare the statute of conviction with the federal drug schedules as they existed at the time of conviction ," not at the time of removal proceedings. CAR at 5 (emphasis in original). Regarding CAT relief, the BIA also discerned no clear error in the IJ's determination that Doe failed to show a likelihood of torture.

Doe's petition for review argues (1) that he is not removable as charged under the "categorical approach" and (2) that as to CAT relief, the agency committed a legal error by concluding that Doe "conceded that ... only [one] person[ ] knew that [Doe] cooperated with the authorities." Id. at 105. We address each of these arguments in turn.

DISCUSSION

I. The Categorical Approach and Doe's CSA Conviction

Because Doe was ordered removed for a drug conviction, our review is limited to "constitutional claims or questions of law raised upon a petition for review." Vargas–Sarmiento v. U.S. Dep't of Justice , 448 F.3d 159, 164 (2d Cir. 2006) (quoting 8 U.S.C. § 1252(a)(2)(D) ). Doe disputes that his crime was a removable offense under the "categorical approach." This is a question of law, which the Court reviews de novo . Id. at 165.

* * *

Pursuant to the INA, an alien may be removable after the time of admission when he or she is convicted, as relevant here, of

(1) violating or conspiring to violate "any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21 )" and excluding single offenses involving small amounts of marijuana, 8 U.S.C. § 1227(a)(2)(B)(i) ;² or

(2) committing an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), a term which encompasses, in relevant part, crimes involving "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) ;³ or

(3) conspiring to commit an aggravated felony, 8 U.S.C. § 1101(a)(43)(U).

Doe was charged as removable for having been convicted of (1) violating a law relating to a controlled substance; (2) a drug trafficking aggravated felony crime; and (3) a conspiracy to commit a drug trafficking aggravated felony crime.

In the context of state criminal convictions alleged to constitute drug trafficking offenses for which an alien is removable, we have employed the "categorical approach to determine whether [a] state offense is comparable to an offense listed in the INA." Moncrieffe , 569 U.S. at 190, 133 S.Ct. 1678 (internal quotation marks and citations omitted). The relevant inquiry has focused on "whether the state statute under which the alien was convicted covered federally controlled substances [as defined in the CSA Schedules] and not others." Mellouli, 135 S.Ct. at 1987.

In contrast, our working assumption has been that "[w]here an alien has a prior federal conviction, it is a straightforward matter to determine whether the conviction was for a ‘felony punishable under the CSA.’ " Moncrieffe , 569 U.S. at 211, 133 S.Ct. 1678 (Alito, J., dissenting) (brackets omitted) (emphasis added); see also Carachuri–Rosendo v. Holder , 560 U.S. 563, 583, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) (Scalia, J., concurring in the judgment) (noting relevant INA provisions make clear that "a federal conviction for a felony offense under the Controlled Substances Act would qualify [as a felony punishable under the CSA]" (emphasis in original) ). Doe's felony conviction for violating the CSA is obviously such a conviction.

But, argues Doe, to determine whether his conviction now...