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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