Wali v. Garland ( 2021 )

Case: 18-60747 Document: 00515995196 Page: 1 Date Filed: 08/25/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 25, 2021
No. 18-60747 Lyle W. Cayce
Clerk
Sajid Momin Wali, also known as Sajid M. Wali,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089 594 370
Before Stewart, Ho, and Engelhardt, Circuit Judges.
Per Curiam:*
Sajid Momin Wali, a native and citizen of Pakistan, became a lawful
permanent resident in 2012. In 2017, he pleaded guilty in Texas state court
to possession with intent to deliver a synthetic cannabinoid. As a result, he
was charged as removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 18-60747 Document: 00515995196 Page: 2 Date Filed: 08/25/2021
No. 18-60747
convicted of a state-law crime relating to a controlled substance defined in
the Controlled Substances Act, 21 U.S.C. § 802.
Both the Immigration Judge and the Board of Immigration Appeals
sustained that removability determination, concluding that although the
Texas statute that formed the basis of Wali’s conviction was broader than the
Controlled Substances Act, Wali was removable because the Texas statute
under which he was convicted was divisible. After the BIA issued its
decision, this court decided Alejos-Perez v. Garland, 991 F.3d 642 (5th Cir.
2021). Under Alejos-Perez, the BIA’s determination that Wali’s statute of
conviction was divisible was error. Accordingly, we grant Wali’s petition for
review, reverse the BIA’s order, and remand for the BIA to reconsider
whether Texas Penalty Group 2-A is divisible in light of Alejos-Perez.
I.
In July 2017, Wali pleaded guilty to possession with intent to deliver
between four and four hundred grams of a synthetic cannabinoid, in violation
of Texas Health and Safety Code § 481.113. That provision prohibits the
possession of substances listed in Penalty Group 2-A, which includes
synthetic cannabinoids, among others. See id. § 481.1031(b)(5). Because of
this conviction, Wali was charged as removable under 8 U.S.C. §
1227(a)(2)(B)(i), which provides that an alien who “has been convicted of a
violation of . . . any law or regulation of a State . . . relating to a controlled
substance (as defined in [the Controlled Substances Act, 21 U.S.C. § 802]),
other than a single offense involving possession for one’s own use of 30 grams
or less of marijuana, is deportable.”
Before the Immigration Judge, Wali argued that Penalty Group 2-A
includes substances that are not included in the federal controlled substance
schedules. Because Penalty Group 2-A is indivisible, he argued, he was not
removable based on a conviction related to a federally controlled substance.
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Alternatively, he applied for asylum, withholding of removal, and protection
under the Convention Against Torture. The Immigration Judge rejected
Wali’s arguments, as did the Board of Immigration Appeals. Wali timely
petitioned this court for review.
II.
Although we generally lack “jurisdiction to review any final order of
removal against an alien who is removable by reason of having committed a
criminal offense” relating to a controlled substance, 8 U.S.C.
§ 1252(a)(2)(C), we retain jurisdiction to review “questions of law,” id.§ 1252(a)(2)(D). Such review is de novo. See Luna-Garcia v. Barr, 932 F.3d
285, 288–89 (5th Cir. 2019). “The BIA’s determination that a violation of a
state . . . law relates to a controlled substance violation presents a pure
question of law.” Vazquez v. Sessions, 885 F.3d 862, 867 (5th Cir. 2018). The
government bears the burden of connecting an element of the alien’s
conviction to a drug defined in the Controlled Substances Act. See Mellouli
v. Lynch, 575 U.S. 798, 813 (2015).
To determine whether the elements of a state crime of conviction
relate to a federally-controlled substance, “[c]ourts must . . . (1) identify the
‘elements that make up the state crime of conviction’ and then (2) determine
whether those elements ‘relate to a federally controlled substance.’” Alejos-
Perez, 991 F.3d at 647 (quoting Mellouli, 575 U.S. at 811). Because we
conclude that the BIA erred in identifying the elements that make up Wali’s
crime of conviction, we do not reach the second question.
Wali was convicted of violating a statute that prohibits possession of
any substance listed in Penalty Group 2-A. See Tex. Health & Safety
Code § 481.113. Because Penalty Group 2-A provides an alternatively-
phrased list of drugs, see id. § 481.1031, “we must decide whether those
alternative drugs constitute . . . ‘multiple elements,’ each of which is part of
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a separate drug offense, or, instead, . . . ‘various factual means of committing’
a single drug offense.” Alejos-Perez, 991 F.3d at 647 (quoting Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016)). “Where each drug constitutes an
element of a separate crime, we call such a statute ‘divisible,’ because we can
divide it into several crimes. Conversely, where each drug is a factual means
of proving a single offense, we call such a statute ‘indivisible,’ because we
can’t divide it into several crimes.” Id. at 647 (citation omitted).
In short, the first step in determining whether Wali is removable is
deciding whether Penalty Group 2-A is divisible. “Divisibility depends on
(1) the statutory text, (2) state caselaw, and (3) the record of conviction.” Id.
at 647.
The BIA concluded that Penalty Group 2-A is divisible. But it did not
engage with the text of the Texas statute in this case. Rather, it relied on two
Texas appellate court decisions, Watson v. State, 900 S.W.2d 60 (Tex. Crim.
App. 1995), and Nichols v. State, 52 S.W.3d 501 (Tex. App.—Dallas 2001, no
pet.), which it concluded “signal[ed] the statute’s divisibility.” The BIA also
found that Texas jury instructions supported its conclusion that Penalty
Group 2-A was divisible.
After the BIA issued its decision, this court decided Alejos-Perez v.
Garland. In Alejos-Perez, the court held that the government failed to
demonstrate that Penalty Group 2-A is divisible. 991 F.3d at 651.
Importantly for this case, the court held that Watson, Nichols, and Texas jury
instructions do not conclusively establish that Penalty Group 2-A is divisible.
See id. at 649–51.
First, the court held that the statutory text of Penalty Group 2-A does
not resolve the divisibility question because it neither “provides a list of
examples nor attaches varying degrees of punishment.” Id. at 650.
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Second, the court recognized that Watson and Nichols are “‘mere
intermediate state court opinion[s],’ which . . . don’t definitively resolve the
issue—presumably, the higher court could come to a different conclusion.”
Id. at 650–51 (alterations in original) (quoting United States v. Reyes, 866 F.3d
316, 322 (5th Cir. 2017)). Neither Watson nor Nichols specifically addresses
whether Penalty Group 2-A is divisible. See id. at 650–51 & n.18.
Finally, the court explained that if state law fails to provide clear
answers, “courts can examine ‘the record of a prior conviction itself.’” Id.
at 651 (quoting Mathis, 136 S. Ct. at 2256). But in doing so, the court stressed,
courts should not look to jury instructions in cases where defendants, such as
Wali, pleaded guilty, because those instructions will not be in the record of
conviction. Id. at 651 n.21. What’s more, “the pattern jury instructions for
[for Wali’s offense] are the product of a State Bar of Texas committee, which
has no authority to decide state law.” Id.
Alejos-Perez thus squarely rejected the BIA’s rationale in this case. We
therefore grant Wali’s petition for review, reverse the BIA’s order and
remand for the BIA to analyze, with the benefit of Alejos-Perez, whether
Penalty Group 2-A is divisible. To be sure, although the court in Alejos-Perez
found that the government in that case failed to show that Penalty Group 2-
A is divisible, the same may not necessarily be true for this case. After
reviewing the information and judgment of conviction, the court concluded
that “the record . . . pull[ed] in both directions,” and as a result the record
“d[id] not ‘speak plainly’ on the issue of divisibility.” Id. at 651 (quoting
Mathis, 136 S. Ct. at 2257). It is entirely possible that, on the information and
judgment of conviction in this case, the government will be able to carry its
burden of demonstrating that Penalty Group 2-A is divisible.
If, on remand, the BIA determines that Penalty Group 2-A is divisible,
it should apply the modified categorical approach to determine whether the
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elements of Wali’s offense of conviction relate to a federally controlled
substance. See id. at 647–50. If the BIA determines that Penalty Group 2-A
is indivisible, it should apply the categorical approach. See id.
***
For the foregoing reasons, Wali’s petition for review is granted, and
the order of the BIA is reversed and remanded for proceedings consistent
with this opinion.
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