Vazquez v. Sessions

• Decision Date: 21 March 2018
• Docket Number: No. 16-60211,16-60211
• Citation: 885 F.3d 862
• Parties: Ivan Bernabe Rodriguez VAZQUEZ, Petitioner, v. Jefferson B. SESSIONS, III, U. S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

885 F.3d 862

Ivan Bernabe Rodriguez VAZQUEZ, Petitioner,

v.Jefferson B. SESSIONS, III, U. S. Attorney General, Respondent.

No. 16-60211

United States Court of Appeals, Fifth Circuit

March 21, 2018

Amanda Lea Waterhouse, Esq., Reina & Bates Immigration & Nationality Law, Houston, TX, for Petitioner.

Lisa Marie Arnold, Senior Litigation Counsel, Rebekah A. Nahas, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, John M. McAdams, Jr., U.S. Department of Homeland Security, Washington, DC, for Respondent.

Before JONES, SMITH, and PRADO, Circuit Judges.

ON PETITION FOR REHEARING

EDWARD C. PRADO, Circuit Judge:

Treating Respondent's motion to amend opinion as a petition for panel rehearing, the petition for panel rehearing is GRANTED. The prior opinion, Vazquez v. Sessions , 881 F.3d 396 (5th Cir. 2018), is withdrawn, and the following opinion is substituted:

Ivan Bernabe Rodriguez Vazquez ("Vazquez") appeals the Board of Immigration Appeals's ("BIA") decision that he was eligible for deportation pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) for possessing a controlled substance in violation of Oklahoma law. Vazquez challenges both the determination that the Oklahoma schedule of controlled substances was a categorical match to the federal schedule and that in order to terminate his order of removal he was required to show a "realistic probability" that Oklahoma actually prosecutes cases involving substances not included in the federal schedules.

The Fifth Circuit has held that the realistic probability test applies whenever the categorical approach is employed. See United States v. Castillo–Rivera , 853 F.3d 218 (5th Cir. 2017) (en banc), cert. denied , ––– U.S. ––––, 138 S.Ct. 501, 199 L.Ed.2d 390 (2017). Given that the state statute is facially broader than its federal analog, Castillo–Rivera suggests that Vazquez can prevail only if the realistic probability test is satisfied. But he fails to address the question in his brief on appeal, thus waiving the only argument available to him in the wake of Castillo–Rivera . Accordingly, we DENY the petition for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

Vazquez, a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident around October 12, 2007. On August 28, 2013, Vazquez was convicted in Oklahoma for possession of a controlled and dangerous substance, cocaine, in violation of Oklahoma Statute Annotated title 63, § 2-402(A)(1) (2013). Vazquez pleaded guilty and was sentenced to a deferred term of imprisonment of three years, to serve 30 days, followed by 24 months of supervised probation. On July 23, 2015, the U.S. Department of Homeland Security ("DHS") issued Vazquez a Notice to Appear, charging that he was subject to removal pursuant to § 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i), because he was convicted of a controlled substance violation.

Vazquez denied the factual allegations pertaining to his conviction, noting that the judgment was deferred and, under Oklahoma law, the conviction would be automatically expunged upon his satisfactory completion of the probation term. He also sought, and received, several continuances while he collaterally attacked his conviction in state court. The Immigration Judge ("IJ") found by clear and convincing evidence that Vazquez was convicted of cocaine possession based on documentary evidence submitted by the DHS. The documentary evidence provided that Vazquez pleaded guilty in 2013 to "possession of controlled dangerous substance—cocaine." The IJ concluded that Vazquez's conviction was valid for immigration purposes, and he was removable as charged.

Vazquez appealed the IJ's decision to the BIA. He argued, inter alia, that the IJ failed to conduct a categorical analysis of the statute of conviction, the statute was not divisible, and violating Oklahoma's controlled substances statute did not equate to violating the federal Controlled Substances Act because the Oklahoma and federal schedules did not categorically match. The BIA dismissed the appeal, concluding that Vazquez was removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) because his conviction for possession of a controlled and dangerous substance in violation of Oklahoma state law was a categorical match to the corresponding federal offense. Specifically, the BIA noted that it "fail[ed] to find any of the alleged differences cited by [Vazquez] on appeal" after conducting a de novo comparison of controlled substances listed in Oklahoma's Schedule II, Part B with the substances included in Schedule II of the federal drug schedules. The BIA noted that even if Oklahoma's drug schedules included substances that were not included in the federal drug schedules,

there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach. In other words ... we presume there is a categorical match between state and federal drug schedules unless the respondent shows that the state actually prosecutes cases involving substances not on the federal schedule.

Vazquez filed a timely petition for review.

II. DISCUSSION

The removal proceedings and the direct appeal to the BIA were conducted within this Circuit. See 8 U.S.C. § 1252(b)(2). Judicial review of a final order by the BIA against a criminal alien is generally precluded by the Immigration & Nationality Act, 8 U.S.C. § 1252(a)(2)(C). See Enriquez–Gutierrez v. Holder , 612 F.3d 400, 406 (5th Cir. 2010). However, this Court retains jurisdiction to review constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(D). The BIA's determination that a violation of a state or federal criminal law relates to a controlled substance violation presents a pure question of law. See id. § 1227(a)(2)(B)(i); Danso v. Gonzales , 489 F.3d 709, 712–13 (5th Cir. 2007) (holding that this Court had jurisdiction to review whether a conviction qualified as a controlled substance violation pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II) ); Omagah v. Ashcroft , 288 F.3d 254, 258 (5th Cir. 2002) (noting that determining a crime's elements is beyond the scope of the BIA's power and expertise).

A. Effective Exhaustion of Vazquez's Claim

As a preliminary issue, this Court must determine whether Vazquez properly exhausted his claim before the BIA. We have jurisdiction to determine our own jurisdiction. Omari v. Holder , 562 F.3d 314, 318 (5th Cir. 2009). Judicial review of a final removal order is only available if "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). The exhaustion requirement is statutorily mandated; "an alien's failure to exhaust his administrative remedies serves as a jurisdictional bar to our consideration of the issue." Wang v. Ashcroft , 260 F.3d 448, 452 (5th Cir. 2001). "An alien fails to exhaust his administrative remedies with respect to an issue when the issue is not raised in the first instance before the [BIA]." Id. at 452–53. "This exhaustion requirement applies to all issues for which an administrative remedy is available to a petitioner ‘as of right.’ " Omari , 562 F.3d at 318 (quoting Arce–Vences v. Mukasey , 512 F.3d 167, 172 (5th Cir. 2007) ). "A remedy is available as of right if (1) the petitioner could have argued the claim before the BIA, and (2) the BIA has adequate mechanisms to address and remedy such a claim." Id. at 318–19. The alien "must fairly present an issue to the BIA to satisfy § 1252(d)'s exhaustion requirement." Id. at 321 (internal quotation marks omitted). An issue is fairly presented when the petitioner made "some concrete statement before the BIA to which they could reasonably tie their claims before this court." Id. at 322. If an alien submits a brief, "that brief becomes the operative document through which any issues that a petitioner wishes to have considered must be raised." Claudio v. Holder , 601 F.3d 316, 319 (5th Cir. 2010).

In order to satisfy the exhaustion requirement, Fifth Circuit cases "have continually stated that a petitioner must ‘raise,’ ‘present,’ or ‘mention’ an issue to the BIA to satisfy exhaustion." Omari , 562 F.3d at 321. This requires some affirmative action by a party, but it is by no means a requirement that the arguments be identical. See id. For example, in Carranza–de Salinas v. Gonzales , 477 F.3d 200 (5th Cir. 2007), the petitioner exhausted his argument by presenting it in a "less developed form." Id. at 206–07. In Dale v. Holder , a petitioner properly exhausted an argument regarding divisibility of a statute even though the argument before the BIA was not identical to the argument presented on appeal. 610 F.3d 294, 299–301 (5th Cir. 2010). This Court held that subsequent variations in analysis or changes in the scope of an argument do not render an issue unexhausted. Id. Similarly, in Burke v. Mukasey , a pro se petitioner's general argument to the BIA embraced a slightly more specific question, and thus his claim on appeal was exhausted. 509 F.3d 695, 696 (5th Cir. 2007). The key requirement in these cases is that a petitioner must have presented an issue in some concrete way in order to put the BIA on notice of his claim. See Omari , 562 F.3d at 322 (framing the exhaustion requirement in broad terms of identifying issues). In this case, Vazquez exhausted his argument that the Oklahoma statute is broader than its federal counterpart.

Vazquez asserts that he properly raised all issues before the BIA. Specifically, he exhausted the issue of whether or not the Oklahoma controlled substance schedules included more substances than the federal schedules such that they were not a generic match. Thus, a controlled substance offense under Oklahoma law could not categorically be an offense related to a controlled substance as required by 8 U.S.C. §...