Mana v. Garland ( 2023 )

Case: 21-60857 Document: 00516660898 Page: 1 Date Filed: 03/01/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 1, 2023
No. 21-60857 Lyle W. Cayce
Clerk
Ahmed Hussain Mana,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A043 308 602
Before Stewart, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Ahmed Hussain Mana seeks review of the Board of Immigration
Appeals’ (BIA) decision, adopting and affirming the Immigration Judge’s
(IJ) decision, which denied Mana’s application for cancellation of removal
and for deferral of removal under the Convention Against Torture (CAT).
We DISMISS IN PART and DENY IN PART Mana’s petition for
review.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I.
Ahmed Hussain Mana, a native and citizen of Yemen, became a lawful
permanent resident of the United States in 1992. In February 2015, he was
convicted in Louisiana state court of distributing a controlled substance,
namely hydrocodone, in violation of La. R.S. 40:967(A)(1) and was sentenced
to five years in prison.
In March 2020, Mana was charged with being removable under 8
U.S.C. § 1227(a)(2)(B)(1) for having been convicted of a violation of state or
federal law relating to a controlled substance, as defined in 21 U.S.C. § 802,
other than a single offense of possession for one’s own use of 30 grams or less
of marijuana. Through counsel, Mana admitted the charge and was found to
be removable based on his 2015 state drug distribution conviction. He
applied for cancellation of removal under 8 U.S.C. § 1229b(a) as well as
protection under the CAT based on his fear of being harmed in Yemen by the
current government or due to the general violence there.
The IJ denied Mana’s applications for cancellation of removal and
CAT protection, ordering his removal to Yemen. The IJ determined that
Mana was not credible due to inconsistent and implausible statements within
his testimony; inconsistencies between his testimony, his 1996 naturalization
application, and his CAT application; and his failure to provide reasonably
available corroborating evidence from his relatives. The IJ determined that
Mana was not entitled to cancellation of removal or CAT protection due to
his lack of credibility. Alternatively, the IJ concluded that Mana was
statutorily ineligible for cancellation of removal because his 2015 state drug
distribution conviction constituted a disqualifying aggravated felony under
the drug-trafficking-crime prong, or, alternatively, under the illicit-
trafficking-in-a-controlled-substance prong, of 8 U.S.C. § 1101(a)(43)(B).
Additionally, assuming arguendo that Mana testified credibly, the IJ
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nevertheless denied his claim for CAT protection based on his failure to
demonstrate that such relief was warranted.
Mana filed a counseled appeal to the BIA. He asserted that he was
eligible for cancellation of removal because his 2015 conviction was neither a
drug trafficking crime nor illicit trafficking in a controlled substance and thus
did not constitute a disqualifying aggravated felony. He argued that the state
offense was broader than the federal offenses and that the IJ erred by
considering that the specific facts of his case involved commercial dealings.
Additionally, Mana asserted that he had presented sufficient evidence to
show that he faced a likelihood of future torture in Yemen and was thus
entitled to CAT protection.
The BIA dismissed Mana’s appeal and ordered his removal.
Specifically, the BIA affirmed the IJ’s determination that Mana’s 2015
conviction constituted both a drug trafficking crime and illicit trafficking in a
controlled substance and was thus an aggravated felony that disqualified him
from cancellation of removal. Additionally, the BIA affirmed the IJ’s denial
of CAT protection, “assuming without deciding [Mana’s] credibility.” The
BIA concluded that the IJ’s “assessment of the evidence support[ed] her
determination that [Mana] did not meet his burden and demonstrate—either
by testimony or by means of country conditions evidence in the record—that
it is more likely than not that he would be subjected to torture if returned to
Yemen, inflicted by or at the instigation of or with the consent or
acquiescence (including willful blindness) of an official or other person acting
in an official capacity.”
Mana filed a timely petition for review, reiterating his argument that
his 2015 state conviction was not a disqualifying aggravated felony and
additionally arguing the BIA’s denial of CAT protection was not based on
substantial evidence.
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II.
Under 8 U.S.C. § 1252(a)(2)(C), this court lacks jurisdiction to review
a removal order where, as here, the alien was removed on account of his
commission of a controlled substance offense under 8 U.S.C.
§ 1227(a)(2)(B). See Alexis v. Barr, 960 F.3d 722, 730 (5th Cir. 2020).
However, § 1252(a)(2)(D) preserves this court’s jurisdiction to consider
constitutional claims and questions of law. Id. at 730. Whether Mana’s 2015
conviction for distributing hydrocodone in violation of La. R.S. §
40:967(A)(1) constitutes an aggravated felony is a question of law over which
this court has jurisdiction. See Shroff v. Sessions, 890 F.3d 542, 544 (5th Cir.
2018). Additionally, this court has jurisdiction to review Mana’s factual
challenge to the agency’s denial of his request for CAT protection, as the
Supreme Court has held that § 1252(a)(2)(C) and (D) do not preclude review
of such challenges. Nasrallah v. Barr, 140 S. Ct. 1683, 1694 (2020).
In evaluating a petition for review, this court considers the BIA’s
decision, as well as the decision of the IJ to the extent that it influenced the
BIA. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Factual findings are
reviewed for substantial evidence, which means that the alien has “the
burden of showing that the evidence is so compelling that no reasonable
factfinder could reach a contrary conclusion.” Chen v. Gonzales, 470 F.3d
1131, 1134 (5th Cir. 2006). “By contrast, this court reviews the BIA’s legal
determinations de novo, including whether the [BIA] applied an
inappropriate standard or failed to make necessary findings.” Ghotra v.
Whitaker, 912 F.3d 284, 288 (5th Cir. 2019) (internal quotation marks and
citation omitted). “If this court determines that the BIA applied an
inappropriate standard or neglected necessary findings, the court will vacate
the decision and remand to the BIA.” Id.4
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A. Cancellation of Removal
When a long-term lawful permanent resident alien is inadmissible or
deportable, the Attorney General may cancel the removal of the alien under
8 U.S.C. § 1229b(a) if he meets several requirements, one of which is that he
“has not been convicted of any aggravated felony.” “An alien applying for
relief or protection from removal has the burden of proof to establish” that
he “satisfies the applicable eligibility requirements.” 8 U.S.C.
§ 1229a(c)(4)(A)(i); see Ochoa-Salgado v. Garland, 5 F.4th 615, 617 & n.2 (5th
Cir. 2021). Mana argues that the BIA erred in finding his 2015 state
conviction was a disqualifying aggravated felony. This court reviews de novo
the legal questions whether a prior conviction constitutes an aggravated
felony and whether an alien is statutorily eligible for discretionary relief in the
form of cancellation of removal. Flores-Larrazola v. Lynch, 840 F.3d 234, 237
(5th Cir. 2016).
Courts employ a categorical approach to determine whether a state
offense qualifies as an aggravated felony for immigration purposes.
Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). Under the categorical
approach, the elements of the state statute defining the crime of conviction,
rather than the particular facts of the prior case, are examined to determine
whether the state conviction categorically fits within the federal definition of
an aggravated felony. Id.; see Mathis v. United States, 579 U.S. 500, 504-05
(2016). The state conviction is not an aggravated felony if the minimum
conduct criminalized by the state statute falls outside of the federal
definition, as long as there is a realistic probability that the state would in fact
apply its statute to that minimum conduct. Moncrieffe, 569 U.S. at 190-91.
However, if the state statute has a divisible structure whereby its
elements are listed in the alternative, that single statute essentially defines
multiple crimes; in that circumstance, the modified categorical approach may
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be utilized. Mathis, 579 U.S. at 505. This approach permits a court to “look[]
to a limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine what crime, with
what elements, a defendant was convicted of.” Id. at 505-06. “If those
limited elements for the state statute are narrower than or equivalent to the
elements that comprise the analogous federal law,” there is a match. United
States v. Frierson, 981 F.3d 314, 317 (5th Cir. 2020).
The state statute at issue here, La. R.S. 40:967(A), prohibits
“knowingly or intentionally” either (1) “produc[ing], manufactur[ing],
distribut[ing], or dispens[ing] or possess[ing] with intent to produce,
manufacture, distribute, or dispense, a controlled dangerous substance or
controlled substance analogue classified in Schedule II” or (2) “creat[ing],
distribut[ing], or possess[ing] with intent to distribute, a counterfeit
controlled dangerous substance classified in Schedule II.” This court has
explained that “[t]he fact that there are different punishments for different
drugs and activities evidences that the types of drugs in Schedule II are
elements and not merely a list of illustrative means,” and thus, § 40:967(A)
is a divisible statute subject to the modified categorical approach. Frierson,
981 F.3d at 318. The relevant documents in this case establish that Mana was
convicted of violating § 40:967(A)(1) by distributing hydrocodone, which is
a Schedule II controlled substance under La. R.S. 40:964.
As relevant here, § 1101(a)(43)(B) defines “aggravated felony” as
“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).” Illicit trafficking in a controlled substance and a drug trafficking crime
are two independent routes for a state drug felony to qualify as an aggravated
felony. See Flores-Larrazola, 840 F.3d at 238; Arce-Vences v. Mukasey, 512
F>3d 167, 171 (5th Cir. 2007); see also Daas v. Holder, 620 F.3d 1050, 1054
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(9th Cir. 2010). The BIA determined Mana’s 2015 state conviction met both
definitions. We address each in turn.
“[I]llicit trafficking” in a controlled substance is “any state, federal,
or qualified foreign felony conviction involving the unlawful trading or
dealing in a controlled substance as defined by Federal law.” Flores-
Larrazola, 840 F.3d at 240 (quoting Matter of L–G–H–, 26 I. & N. Dec. 365,
368 (BIA 2014)). A violation of § 40:967(A) is a felony, as it is punishable by
imprisonment at hard labor, see La. Code Crim. Proc. art. 933, and
hydrocodone is a controlled substance under federal law, 21 U.S.C. § 812(a);
21 C.F.R. § 1308.12(b)(1)(vi). The only question remaining is whether
Mana’s state conviction involved the “trading or dealing” of hydrocodone.
“Trading or dealing” requires “some sort of commercial dealing.”
Arce-Vences, 512 F.3d at 171; see also Lopez v. Gonzales, 549 U.S. 47, 53 (2006).
Under Louisiana law, “distribute” means to “to deliver a controlled
dangerous substance,” La. R.S. 40:961(15), and the Louisiana Supreme
Court has held that delivery means simply “to transfer possession or
control,” State v. Martin, 310 So. 2d 544, 546 (La. 1975). “[W]ith regard to
distribution, the law does not distinguish between selling the drugs, giving
them away, or sharing them.” State v. Smith, 2007-847, p. 10, (La. App. 3
Cir. 1/30/08), 974 So. 2d 883, 888. Thus, Mana argues—and we agree—
that because § 40:967(A) does not require commercial dealing, it is broader
than the generic offense of “illicit trafficking in a controlled substance.” The
BIA relied on Mana’s testimony at his immigration hearing that he bought
pills from one person and sold them to another to satisfy the commercial-
dealing component of “illicit trafficking,” but—as the Government
concedes—this was error, as a reviewing court must “examine what the state
conviction necessarily involved, not the facts underlying the case.”
Moncrieffe, 569 U.S. at 190-91.
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Instead, the Government argues Mana’s state conviction nevertheless
qualifies as a drug trafficking crime. A drug trafficking crime is defined as
“any felony punishable under the Controlled Substances Act [CSA] (21
U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21
U.S.C. 951 et seq.), or chapter 705 of title 46.” 18 U.S.C. § 924(c)(2);
Sarmientos v. Holder, 742 F.3d 624, 628 (5th Cir. 2014). As relevant here, the
CSA makes it unlawful for any person “knowingly or intentionally” to
“manufacture, distribute, or dispense, or possess with the intent to
manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C.
§ 841(a)(1). A violation of § 841(a)(1) involving a Schedule II controlled
substance like hydrocodone is a federal felony carrying a maximum prison
sentence of twenty years under § 841(b)(1)(C). See 18 U.S.C. § 3559(a)(5)
(requiring a maximum prison sentence of more than one year to be a felony
under federal law); Lopez, 549 U.S. at 60 (holding a state offense constitutes
a felony punishable under the CSA only if it proscribes conduct punishable
as a felony under that federal law).
Mana again argues that distribution under § 40:967(A) is broader than
distribution under § 841(a) because remuneration is not required for his state
offense but is necessary for the federal offense. To the contrary, we have
concluded that “a ‘sale’ is not required” to constitute “‘distribution’ under
21 U.S.C. § 841(a)(1).” United States v. Workopich, 479 F.2d 1142, 1147 (5th
Cir. 1973); see also United States v. Ward, 482 F. App’x 922, 926 & n.1 (5th
Cir. 2012) (same); Jacob v. Holder, 335 F. App’x 370, 373 (5th Cir. 2009)
(“Remuneration is not required in order to satisfy the requirements of
‘delivery’ or ‘distribution’ of a controlled substance under the federal
statute.”). Thus, employing the modified categorical approach and
reviewing the elements of each offense, Mana’s state offense consists of
elements sufficiently narrow to fall within the generic federal crime. Cf.
Frierson, 981 at 318 (concluding possession with intent to distribute cocaine
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under § 40:967(A)(1) was sufficiently narrow to fall within possession with
the intent to distribute under § 841(a)). Accordingly, the BIA did not err in
determining Mana had committed an aggravated felony and was thus
ineligible for cancellation of removal.
B. CAT
To obtain deferral of removal under the CAT, “an applicant must
show that it is more likely than not that he would be tortured if returned to
his home country.” See Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir.
2005) (internal quotation marks and citation omitted); see 8 C.F.R.
§§ 1208.16(c)(2), 1208.17(a). Torture is defined as “‘any act by which
severe pain or suffering . . . is intentionally inflicted on a person’ by or with
the acquiescence of a public official for informational, punitive, coercive, or
discriminatory purposes.” Arulnanthy v. Garland, 17 F.4th 586, 597 (5th Cir.
2021) (alteration in original) (quoting 8 C.F.R. § 1208.18(a)(1)). In
evaluating the likelihood of future torture, the agency must consider “all
evidence relevant to the possibility of future torture,” including “[e]vidence
of gross, flagrant or mass violations of human rights within the country of
removal.” Id. at 597 (quoting § 1208.16(c)(3)). “[E]vidence of past torture
inflicted upon the applicant” must also be considered. § 1208.16(c)(3)(i).
Mana argues the BIA’s determination that he is not likely to be
tortured is not supported by substantial evidence in light of the country
condition evidence he submitted recounting human rights violations in the
Yemen civil war and the fact he was detained four times in 2007 or 2009. 1
1
Mana points to this evidence in the context of an overall substantial evidence
challenge. However, to the extent Mana also argues 1) the BIA procedurally erred when it
both failed to consider his previous detentions and glossed over the State Department’s
reports of torture in Yemen, and 2) the BIA employed the wrong legal test by concluding
that he failed to show that he is at risk of a particularized threat of torture, we conclude that
because Mana failed to exhaust these claims, we lack jurisdiction to review them. Cf.
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However, Mana has not shown “the evidence is so compelling that no
reasonable factfinder could reach a contrary conclusion.” See Chen, 470 F.3d
at 1134.
In Morales v. Sessions, 860 F.3d 812, 818 (5th Cir. 2017), we concluded
that “Petitioner’s presentation of various news articles and reports
describing El Salvador as particularly dangerous for unnamed women and
children . . . [were] too general to warrant ‘relief under the Convention
Against Torture,’” and “Petitioner’s assertion that she—specifically—will
more likely than not be tortured ‘rests wholly upon surmise and
speculation.’” Id. (first quoting Tamara-Gomez v. Gonzales, 447 F.3d 343,
351–52 (5th Cir. 2006); and then quoting Montgomery-Ward & Co. v. Sewell,
205 F.2d 463, 468 (5th Cir. 1953)); see also Qorane v. Barr, 919 F.3d 904, 911
(5th Cir. 2019) (“Generalized country evidence tells us little about the
likelihood state actors will torture any particular person including Qorane.”).
As in Morales, Mana’s country condition evidence does not compel
the conclusion that he specifically will more likely than not be tortured. Cf.
Morales, 860 F.3d at 818. Moreover, as the IJ noted, 2 based on Mana’s
descriptions, his brief detentions did not rise to the level of severe pain or
suffering to amount to torture. Cf. Majd v. Gonzales, 446 F.3d 590, 597 (5th
Cir. 2006) (concluding two brief detentions during which the petitioner was
Martinez-Guevara v. Garland, 27 F.4th 353 361 n.9 (5th Cir. 2022) (“Insofar as Martinez-
Guevara contends only that the BIA erred procedurally, her claim that the BIA ignored
relevant evidence is unexhausted because she did not first raise it in a motion for
reconsideration.”); Avelar-Oliva v. Barr, 954 F.3d 757, 766 (5th Cir. 2020) (“Avelar-
Oliva’s contention that the BIA misapplied the standard of review should have been
presented to the BIA in a motion for reconsideration.”).
2
As here, where the BIA stated its agreement with the IJ’s assessment that the
applicant failed to establish his case, the IJ’s decision affected the BIA’s decision and is
thus reviewable. See Zhu, 493 F.3d at 593-94.
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roughed up and questioned did not amount to torture). The BIA’s finding
was supported by substantial evidence.
III.
The petition for review is DISMISSED IN PART as to Mana’s
unexhausted claims and DENIED IN PART as to the remainder of his
claims.
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