Swaby v. Yates

United States Court of Appeals
For the First Circuit
No. 16-1821
ORAL AGUSTAS SWABY,
Petitioner,
v.
SALLY Q. YATES,
Acting Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Stahl, Lipez,
Circuit Judges.
Patrick N. Long, on brief for petitioner.
Jessica E. Burns, 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.
January 30, 2017

Pursuant to Fed. R. App. 43(c)(2), Sally Q. Yates has been
substituted for Loretta E. Lynch as Attorney General.
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).
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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, 135 S. Ct. 1980 (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.
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§ 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.
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§ 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
Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (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
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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,
1 We note, though, that Rhode Island has retained
thenylfentanyl on Schedule I despite enacting other amendments to
that drug schedule in 2012, 2013, and 2014. See 2012 R.I. Pub.
Laws ch. 415, § 36; 2013 R.I. Pub. Laws ch. 404, § 1; 2014 R.I.
Pub. Laws ch. 71, § 1.
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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. 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
2 See United States v. Fish, 758 F.3d 1, 6 (1st Cir. 2014)
(noting, outside the context of § 1227, but with reference to the
categorical approach more generally, that "a state's definition of
a crime is overbroad if its elements allow for a conviction without
satisfying the elements Congress has provided to define the
required predicate offense" (emphasis added)); see also United
States v. Aparicio-Soria, 740 F.3d 152, 158 (4th Cir. 2014) (en
banc) ("We do not need to hypothesize about whether there is a
'realistic probability' that Maryland prosecutors will charge
defendants engaged in [the broader conduct]; we know that they can
because the state's highest court has said so." (emphasis added));
Ramos v. U.S. Att'y Gen., 709 F.3d 1066, 1071-72 (11th Cir. 2013)
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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.
(Duenas-Alvarez does not require showing that the state "would use
the [state] statute to prosecute conduct falling outside the
generic definition . . . when the statutory language itself, rather
than 'the application of legal imagination' to that language,
creates the 'realistic probability' that a state would apply the
statute to conduct beyond the generic definition"); Jean-Louis v.
Att'y Gen., 582 F.3d 462, 481 (3d Cir. 2009) (finding the
"realistic probability" test inapplicable where the statute's
"elements . . . are clear, and the ability of the government to
prosecute a defendant under [the statute] is not disputed"); United
States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc)
("Where, as here, a state statute explicitly defines a crime more
broadly than the generic definition, no 'legal imagination' is
required to hold that a realistic probability exists that the state
will apply its statute to conduct that falls outside the generic
definition of the crime. The state statute's greater breadth is
evident from its text." (quoting Duenas-Alvarez, 549 U.S. at 193)).
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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, 133 S. Ct. 1678, 1684 (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 for the plea." Moncrieffe, 133 S. Ct. at 1684 (internal
quotation marks omitted). And, in cases of that sort, if the
adjudicator can determine from those records the particular state
law offense for which the noncitizen was convicted, then the
adjudicator need only determine whether that particular state law
offense falls within the predicate federal offense under
§ 1227(a)(2)(B)(i). See Mellouli, 135 S. Ct. at 1986 n.4.
The government contends that we should apply the
modified categorical approach to Rhode Island General Laws Section
21-28-4.01(a)(4)(i). The government contends that this state
statute does not set out one overarching offense covering all
"controlled substances" on the state schedules. Rather, in the
government's view, this state law offense creates distinct state
law crimes for each distinct drug listed on the state drug
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schedules. From that premise, the government then argues that
Swaby's actual crime of conviction falls within the federally
defined removable offense under § 1227(a)(2)(B)(i) because the
relevant plea documents make clear that Swaby's convictions were
for manufacturing, delivering, or possessing with intent to
distribute marijuana, a drug that is listed on the federal drug
schedules.
Swaby's sole response is that Rhode Island law does not
make the particular listed drug involved in the commission of an
offense under Rhode Island General Laws Section 21-28-
4.01(a)(4)(i) an element of that offense. Rather, Swaby contends,
the listed drugs merely set forth the means by which the broader
crime of manufacturing, delivering, or possessing with intent to
distribute a "controlled substance" may be committed. He thus
contends that the modified categorical approach has no
application. But we do not agree.
In Mathis v. United States, 136 S. Ct. 2243, 2256-57
(2016), the Supreme Court recently provided guidance about how to
resolve the elements versus means issue that determines whether
the modified categorical approach applies to a state criminal
statute. And here the factors Mathis instructs us to consider
lead us to reject Swaby's view.
We start with how the Rhode Island Supreme Court has
construed the offense. See Mathis, 136 S. Ct. at 2256 (explaining
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that the "threshold inquiry -- elements or means? -- is easy" where
"a state court decision definitively answers the question"). In
State v. Feng, 421 A.2d 1258 (R.I. 1980), the Rhode Island Supreme
Court expressly described the particular type of controlled
substance listed in the state drug schedules as an element of an
offense under Rhode Island General Laws Section 21-28-4.01, rather
than merely as a possible means by which the offense may be
committed. Feng did so in the course of deciding whether there
was a sufficient factual basis to support a guilty plea to the
charge of possession of "a controlled substance to wit, Lysergic
Acid Dithylamide [LSD]" under Rhode Island General Laws Section
21-28-4.01.
Feng explained that a Rhode Island trial court can
establish an adequate factual basis for a plea by reading the
indictment to the defendant, but only if, among other things, "the
elements of the crime are clearly set out." Id. at 1270 (quoting
Seiller v. United States, 544 F.2d 554, 565 (2d Cir. 1975)). Yet,
Feng noted, in the case at hand, the trial judge had "merely
summarized the charge as 'knowledge and intent to possess a
controlled substance.'" Id. at 1270-71. Feng then ruled that
this summary did not suffice to supply the factual basis for the
guilty plea precisely because the "[r]eference to 'a controlled
substance' does not by itself set out the elements of the offense
of possession of the particular controlled substance LSD." Id. at
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1271.3 Moreover, other Rhode Island Supreme Court decisions accord
with Feng's description of the drug's type as an element of the
offense. See State v. Mendez, 116 A.3d 228, 239 (R.I. 2015) (jury
instructions for the crime of possession of a controlled substance
specified that "the State must show that the defendant possessed
the controlled substance in question"); State v. Jenison, 442 A.2d
866, 875 (R.I. 1982) (possession of a controlled substance requires
"intentional control of the designated substance with knowledge of
its nature" (emphasis added) (punctuation and citation omitted)).
Our conclusion that this state law crime is divisible by
the type of drug also accords with the face of the statute, which
is not drafted merely "to offer 'illustrative examples,'" Mathis,
136 S. Ct. at 2256, but instead assigns "different punishments,"
3 In reaching this conclusion, Feng elaborated:
Reference to "a controlled substance" does not by itself
set out the elements of the offense of possession of the
particular controlled substance LSD. The list of
controlled substances contained in chapter 28 of title
21 is exhaustive. Unlawful possession of more than one
controlled substance constitutes a separate offense for
each such substance possessed. We note also that at the
time of Feng's arrest, several controlled substances
were seized from his dormitory room, and the indictment
itself charged Feng with possession of another
controlled substance -- cocaine. In light of the wide
range of substances classified as "controlled", we
conclude that the trial justice's summary of the charge
did not constitute a straightforward statement of the
facts underlying the offense of possession of LSD.
Feng, 421 A.2d at 1271.
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id., based on the class of a drug, and then "exhaustive[ly]" lists
the individual drugs by type on the state drug schedules. Feng,
421 A.2d at 1271; see R.I. Gen. Laws § 21-28-4.01(a)(4). This
feature of the Rhode Island statute, under Mathis, also points in
favor of the conclusion that the offense sets out distinct crimes
based on drug type. Mathis, 136 S. Ct. at 2256.
Finally, Mathis explains that, even where "state law
fails to provide clear answers, federal judges have another place
to look: the record of a prior conviction itself." Mathis, 136
S. Ct. at 2256. "[A]n indictment and jury instructions could
indicate, by referencing one alternative term to the exclusion of
all others, that the statute contains a list of elements, each one
of which goes toward a separate crime." Id. at 2257. And the
indictment in Swaby's case did exactly this, specifying that Swaby
manufactured, delivered, or possessed with intent to distribute "a
controlled substance, to wit, [m]arijuana."
Our determination that the statute is divisible by drug
type, moreover, comports with the rulings of several of our sister
circuits, which have relied on similar considerations in applying
the modified categorical approach to other state controlled
substance statutes. See United States v. Henderson, 841 F.3d 623,
629 (3d Cir. 2016); Carcamo v. Lynch, 648 F. App'x 306, 311-12
(4th Cir. 2016); Ruiz-Giel v. Holder, 576 F. App'x 738, 743–44
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(10th Cir. 2014). In fact, we are aware of no case holding
otherwise.4
Accordingly, we conclude that the modified categorical
approach does apply. And Swaby does not dispute that, under the
modified categorical approach, the relevant plea documents suffice
to make clear that Swaby's convictions were for the manufacturing,
delivering, or possessing with intent to distribute marijuana. We
thus conclude that Swaby's convictions clearly do "relat[e] to a
controlled substance (as defined in [the federal drug
schedules])," just as § 1227(a)(2)(B)(i) requires. Accordingly,
we deny Swaby's petition for review of the BIA's decision that
Swaby had committed a removable offense.5
4 Swaby does cite to two Massachusetts cases that construe
that state's controlled substances criminal statute and that he
contends, by analogy, support his view that this Rhode Island
controlled substances law is not divisible with respect to the
type of controlled substance. But, in addition to the fact that
those cases do not construe Rhode Island law, they also establish
only that a defendant need not know the particular identity of the
controlled substance. They do not address whether the government
must prove the identity of the particular controlled substance.
Commonwealth v. DePalma, 673 N.E.2d 882, 884 (Mass. App. Ct. 1996);
Commonwealth v. Rodriguez, 614 N.E.2d 649, 653 (Mass. 1993). And
other Massachusetts cases appear to establish that the government
actually must do so. See Commonwealth v. Vasquez, 923 N.E.2d 524,
534 (Mass. 2010); Commonwealth v. McGilvery, 908 N.E.2d 783, 787
(Mass. 2009).
5 Although the IJ originally denied Swaby's motion to
terminate proceedings based on its application of the modified
categorical approach, the BIA did not affirm the IJ's order on
that ground. Ordinarily, we would not uphold an agency's decision
on grounds that the agency did not itself supply. See SEC v.
Chenery Corp., 332 U.S. 194 (1947). We do so here, however,
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IV.
Swaby next challenges the denial of his motion for
cancellation of removal, a discretionary form of relief that may
be granted when positive factors weighing against removal outweigh
negative factors that counsel in favor of removal. See 8 U.S.C.
§ 1229b(a); Matter of C-V-T-, 22 I. & N. Dec. 7, 10-12 (BIA 1998).
Swaby recognizes that "[c]ancellation of removal is a form of
discretionary relief over which we generally have no appellate
jurisdiction," unless a petitioner raises "at least a colorable
constitutional claim or question of law." Elysee v. Gonzales, 437
F.3d 221, 223 (1st Cir. 2006). He thus seeks to frame his
challenges as ones that identify a legal error rather than a
questionable exercise of discretion.
We review questions of law de novo, though we accord
"some deference to the BIA's interpretation of the statutes and
regulations that come within its purview." Mendez-Barrera v.
Holder, 602 F.3d 21, 24 (1st Cir. 2010). And when the BIA adopts
and affirms an IJ's decision, as the BIA did here, we review the
IJ's decision "to the extent of the adoption, and the BIA's
decision as to [any] additional ground." Sunoto v. Gonzales, 504
because the parties agree, that no purpose would be served by
remanding this case to the agency to apply the modified categorical
approach given that, as a matter of law, the modified categorical
approach dictates the outcome, just as the IJ had ruled. See NLRB
v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (remand not
required where it would be an "idle and useless formality").
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F.3d 56, 59–60 (1st Cir. 2007) (quoting Berrio-Barrera v. Gonzales,
460 F.3d 163, 167 (1st Cir. 2006)).
With that background in place, we turn now to the first
of Swaby's challenges. Swaby contends that the IJ erred as a
matter of law in balancing the positive and negative factors in
this case by impermissibly considering as a negative factor the
fact that Swaby's five children have five different mothers. Swaby
contends in this regard that, under Matter of C-V-T-, the only
negative factors an IJ may consider are the noncitizen's
immigration and criminal records and matters pertaining to them.
In fact, Matter of C-V-T- is not so strict. 22 I. & N.
Dec. at 11 (explaining that noncitizens' immigration and criminal
records are "[a]mong the factors deemed adverse" to them, but so
too is "the presence of other evidence indicative of a respondent's
bad character or undesirability as a permanent resident of this
country"). But, of more significance here, the IJ recognized that
the fact that Swaby has five children in the United States was a
positive factor. The IJ thus referenced the fact that Swaby's
children had different mothers not as a negative factor but only
in the course of evaluating the strength of Swaby's ties to those
children. The evaluation of the strength of those ties falls well
within the IJ's discretion to assess the strength of a positive
factor. There is thus no basis in the record for Swaby's assertion
of legal error.
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Swaby next contends that the IJ erred by "entirely
fail[ing] to consider" the hardship that would befall two of
Swaby's children if Swaby were removed. This contention fails to
present a colorable legal challenge over which we have
jurisdiction. For even if a complete failure to consider such
hardship constitutes a legal error, cf. Elysee, 437 F.3d at 223-
24 (holding that a petition for review based on "the IJ's supposed
'complete[] disregard[]' for the hardships that will be faced by
[petitioner's] children if he is deported" raised no question of
law); Mele v. Lynch, 798 F.3d 30, 32 (1st Cir. 2015) ("[W]here
Congress has enacted a jurisdictional wall, an alien cannot scale
it simply 'by relitigat[ing] whether the factors relevant to [the]
discretionary relief were appropriately weighed by the IJ and the
BIA.'" (quoting Urizar-Carrascoza v. Holder, 727 F.3d 27, 32 (1st
Cir. 2013) (modifications in original)), there is no colorable
argument that such a failure occurred here.
The record reveals that the IJ identified hardship to
Swaby's family as a positive factor and considered all of the
exhibits that Swaby submitted, including Swaby's affidavit and
affidavits from family members and friends, as well as Swaby's
testimony, noting that Swaby had expressed "particular concern"
about the hardship that would befall one of Swaby's children. The
IJ then stated that it had weighed the positive factors against
the negative factors. No more was required. See Telyatitskiy v.
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Holder, 628 F.3d 628, 631 (1st Cir. 2011) (holding that where
"[t]he record reveals that the IJ considered the totality of the
evidence presented," the IJ does not err "merely by failing to
address specifically each piece of evidence the petitioner
presented"). For these reasons, Swaby's petition for review of
the IJ's denial of Swaby's request for cancellation of removal is
dismissed.
V.
In light of the foregoing, the petition for review is
denied in part and dismissed in part.
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