Vetcher v. Barr

• Decision Date: 19 March 2020
• Docket Number: No. 18-60449,18-60449
• Citation: 953 F.3d 361
• Parties: Ivan Alexandrovich VETCHER, Petitioner v. William P. BARR, U. S. Attorney General, Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

953 F.3d 361

Ivan Alexandrovich VETCHER, Petitioner

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

No. 18-60449

United States Court of Appeals, Fifth Circuit.

FILED March 19, 2020

Ben Geslison, Travis Lenti Gray, Esq., Jonathan Mark Little, Baker Botts, L.L.P., Houston, TX, for Petitioner.

Giovanni B. Di Maggio, Esq., Trial Attorney, U.S. Department of Justice, Civil Division/OIL, Washington, DC, for Respondent.

Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Petitioner Ivan Vetcher ("Vetcher") contests his detention and removal pursuant to Section 241 of the Immigration and Nationality Act ("INA") ( 8 U.S.C. § 1231 ) and Section 202 of the Controlled Substances Act ( 21 U.S.C. § 812 ). He seeks review of the May 11, 2018 decision of the Board of Immigration Appeals ("BIA") that affirmed the Immigration Judge’s ("IJ") decision ordering his removal from the United States. For the reasons set forth herein, we DENY Vetcher’s petition for cancellation of removal.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

Vetcher is a 29 year-old native of Belarus whose family fled to the United States in 2001 as refugees; he was 11 years old at the time. He became a lawful resident in 2005 at the age of 15. He is married to an American citizen with whom he shares a 5 year-old son and two step-children from his wife’s previous relationship. In 2009, 2011, and 2012, Vetcher was arrested on charges including burglary, obstruction of justice, and obstructing police. In April 2014, Vetcher was arrested for selling psychedelic/hallucinogenic mushrooms. Vetcher pled guilty to two counts of "deliver[ing], by actual transfer, constructive transfer and offer to sell to another, a controlled substance, namely, psilocybin/psilocin, in an amount of four grams or more but less than 400 grams," pursuant to Texas Health & Safety Code § 481.113(d). In May 2014, Vetcher was sentenced to ten years of imprisonment on each count to run concurrently, though each sentence was fully suspended in favor of a ten-year period of community supervision.

On July 2, 2014, the Department of Homeland Security ("DHS") personally served Vetcher with a notice to appear ("NTA"). It notified Vetcher of his removability based upon the April 2014 drug trafficking conviction and ordered him to appear at removal proceedings before an IJ in Dallas, Texas, on a "date and time to be set." Vetcher was detained pending his removal proceedings, and the NTA was filed with the immigration court on July 8, 2014. On July 10, 2014, the immigration court issued Vetcher a "notice of hearing" scheduling his initial hearing before the IJ for July 17, 2014 at 8:30 a.m.

B. Procedural History

The DHS charged Vetcher with deportability as an alien charged with an "aggravated felony." In its August 6, 2014 decision, the IJ sustained the aggravated felony charge and found Vetcher ineligible for asylum and withholding of removal on the basis that the aggravated felony charge was a "particularly serious crime." Filing pro se, Vetcher appealed that decision to the BIA. The BIA dismissed the appeal in December 2014, holding that the aggravated felony drug charge was indeed a particularly serious crime which prevented Vetcher from seeking asylum and withholding of removal. Still proceeding pro se, Vetcher then sought relief from this court when he filed a petition for stay of removal pending review in January 2015. A couple of months later in March 2015, Vetcher filed a motion to re-open his case with the BIA.

On April 9, 2015, this court granted Vetcher’s petition to stay the removal pending review, holding that "a Texas conviction for delivery of a controlled substance by offering to sell is not categorically an ‘aggravated felony,’ as defined by the INA because it penalizes conduct that does not amount to a felony under the Controlled Substances Act." Vetcher v. Holder , No. 15-60047, Slip Op. (5th Cir. Apr. 9, 2015). On June 25, 2015, the BIA sua sponte re-opened and remanded the proceedings back to the IJ for re-consideration of Vetcher’s status as an alien convicted of an aggravated felony. After the proceedings were remanded, the government withdrew the aggravated felony charge and asserted a different basis for removal—Section 237(a)(2)(B)(i) of the INA—which provides in relevant part that "[a]ny alien who ... has been convicted of a violation of ... any law ... of a State ... relating to a controlled substance (as defined in Section 802 of Title 21) ... is deportable." 8 U.S.C. § 1227(a)(2)(B)(i).

In its October 27, 2015 decision on remand, the IJ denied Vetcher’s petition for withholding of removal and cancellation of removal because, after balancing the equities, it found that Vetcher’s admitted drug trafficking and no signs of "real rehabilitation" from that conduct outweighed the fact that he was remorseful for his drug trafficking and that he has family in the United States. Vetcher appealed this decision to the BIA again, as a pro se litigant.

In its November 8, 2016 decision, the BIA affirmed in part the IJ’s findings that Vetcher’s 2014 conviction under Texas Health & Safety Code § 481.113(d) constitutes both a controlled substance violation, rendering Vetcher removable, and a particularly serious crime, rendering him ineligible for withholding of removal under the INA. However, the BIA remanded the IJ’s denial of Vetcher’s petition for cancellation of removal stating that the IJ’s decision "was not supported by complete factual findings." On October 4, 2017, the IJ denied Vetcher’s application for discretionary cancellation of removal finding, inter alia, that Vetcher’s claim that he had rehabilitated and turned away from drug sales was "severely undercut by [Vetcher’s] continuing argument that he is not guilty of any crime." On appeal, the BIA restated and declined to revisit these conclusions in its May 11, 2018 decision while affirming the IJ’s October 4, 2017 decision to deny Vetcher’s petition for cancellation of removal from the United States. Vetcher timely appealed to this court, requesting that the court re-open his removal proceedings and allow him to re-litigate his claims with the adequate legal resources.

II. STANDARD OF REVIEW

"When reviewing a BIA decision, questions of law are reviewed de novo, but this Court defers to the BIA’s interpretation of immigration statutes and regulations." Vazquez v. Sessions , 885 F.3d 862, 870 (5th Cir. 2018) (citing Danso v. Gonzales , 489 F.3d 709, 712–13 (5th Cir. 2007) ); cf. Gomez-Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009) ("[T]his court accords deference to the BIA’s interpretation of immigration statutes unless the record reveals compelling evidence that the BIA’s interpretation is incorrect."). Though our review is generally limited to the BIA’s decision, we may also review the IJ’s decision when it influences the BIA’s decision or where the BIA has adopted all or part of the IJ’s reasoning. Le v. Lynch , 819 F.3d 98, 104 (5th Cir. 2016).

III. DISCUSSION

A. Though Vetcher’s state law conviction is not a facial categorical match to the federal schedule of controlled substances, there is no realistic probability that Texas courts will apply its statute to conduct that falls outside of the scope of the federal analog.

Vetcher argues that his state law conviction is not a categorical match to the federal schedule of controlled substances because there are at least 43 substances in Penalty Group 2-A that were not on any federal schedule at the time of his conviction. To determine if a state law conviction renders an alien eligible for removal under the INA, courts apply the categorical approach. Vazquez , 885 F.3d at 870. As explained in Vazquez :

The categorical approach analyzes whether the elements of the state conviction are the same as or narrower than the elements of the generic removability offense under federal law, while ignoring the particular facts of the case. A state offense is a categorical match with a generic federal offense only if a conviction of the state offense would necessarily involve proving facts that would establish a violation of the generic federal offense. See Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S. Ct. 1678, 185 L.Ed.2d 727 (2013). When comparing statutes under the categorical approach, courts only look to the statutory definitions; "[a]n alien’s actual conduct is irrelevant to the inquiry." [ Mellouli v. Lynch , 575 U.S. 798, 135 S. Ct. 1980, 1986, 192 L.Ed.2d 60 (2015) ]. A court thus "must presume that the conviction rested upon nothing more than the least of the acts criminalized" and determine whether those acts correspond to the generic federal offense referenced in the removal statute. Moncrieffe , 569 U.S. at 190–91, 133 S. Ct. 1678 (internal quotation marks, brackets, and citation omitted).

Id. at 870–71.

However, if "a state statute criminalizes offenses that fall outside of the federal generic definition, there is not a categorical match." Id. at 871. "If there is a categorical match between the predicate offense and generic definition, the inquiry ends there." Id. (citing Esparza–Rodriguez v. Holder , 699 F.3d 821, 825 (5th Cir. 2012) ). When there is a categorical match, a state law conviction triggers removal under the INA. Id.

Texas Health & Safety Code § 481.113(a) provides that "a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 2 or 2-A." Subsection (d) then provides, "[a]n offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 400 grams." Id. at § 481.113(d). Thus, the elements we examine are: the (1) manufacture, delivery, or possession with intent to deliver, (2) 4 grams or more but less than 400 grams of, (3) a controlled substance listed in...