Swaby v. Yates

• Citation: 847 F.3d 62
• Decision Date: 30 January 2017
• Docket Number: No. 16-1821,16-1821
• Parties: Oral Agustas SWABY, Petitioner, v. Sally Q. YATES,Acting Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

847 F.3d 62

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

Patrick N. Long , Dorchester, MA, on brief for petitioner.

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 Rhode Island General Laws Section 21–28–4.01(a)(4)(i). In consequence, on February 25, 2015, the Department of Homeland Security ("DHS") served Swaby with a Notice to Appear ("NTA"). The NTA charged Swaby with removability under 8 U.S.C. § 1227(a)(2)(B)(i).

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. 21 U.S.C § 802(6).

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 8 U.S.C. § 1227(a)(2)(B)(i). He also requested cancellation of removal based on a consideration of various equitable factors.

On August 26, 2015, the IJ determined that Swaby was removable under § 1227(a)(2)(B)(i), notwithstanding the Supreme Court's decision in Mellouli, and thus denied Swaby's motion to terminate proceedings. The IJ did, however, grant Swaby's motion to stay removal and reopen proceedings. Due to an oversight by DHS, Swaby was then removed to Jamaica in spite of the stay. After DHS located Swaby and returned him to the United States, the IJ denied Swaby's request for cancellation of removal. Swaby appealed both rulings to the Board of Immigration Appeals ("BIA"), which, on May 24, 2016, affirmed them.

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 8 U.S.C. § 1252(a)(1) and § 1252(a)(2), which give the courts of appeals jurisdiction to review constitutional claims and questions of law raised upon a petition for review of a final order of removal against a noncitizen who is removable by reason of having committed a criminal offense covered in § 1227(a)(2)(B).

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 § 1227(a)(2)(B)(i) may thus seem to be a straightforward one. But, it is not. The reason is that, consistent with Mellouli, the BIA applied what is known as the "categorical approach" to determining whether a state conviction qualifies under § 1227(a)(2)(B)(i). See Mellouli, 135 S.Ct. at 1986. And the application of the categorical approach to the facts of this case presents some complications.

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 R.I. Gen. Laws § 21–28–2.08(e)(13), with 21 C.F.R. § 1308.11 -1308.15. As a result, Rhode Island General Laws Section 21–28–4.01(a)(4)(i) applied more broadly than the federally defined predicate offense set forth in § 1227.

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 § 1227, a "state conviction triggers removal only if, by definition, the [state] underlying crime falls within a category of removable offenses defined by federal law." Id. Thus, it would appear that, under the categorical approach, this state law offense did not fall within the federal predicate offense set forth in § 1227, given that the state law offense had a broader scope of application due to the broader sweep of the state drug schedules.

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 Gonzale s 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 § 1227(a)(2)(B)(i), as the seemingly problematic sweep of the state crime would then be more theoretical than real. Id. at 419.

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 Rhode Island General Laws Section 21–28–4.01(a)(4)(i) for thenylfentanyl, the one drug listed on the state schedules but not the federal ones.¹

The BIA thus concluded that, under Matter of Ferreira, Swaby's convictions were for a crime that fell within the federally defined offense, notwithstanding that the state crime did appear to apply more broadly than the federally defined offense. For that reason, the BIA concluded that Swaby's convictions qualified as removable offenses under the categorical approach.

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, 127 S.Ct. 815. 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 § 1227(a)(2)(B)(i), even if they do not qualify under the categorical approach itself.

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...