Argued: September 26, 2017
John Doe seeks review of an April 13, 2016 judgment of the
Bureau of Immigration Appeals dismissing his appeal from an
October 22, 2015 decision of an Immigration Judge ordering
Doe's removal and denying his application for deferral of
removal under the Convention Against Torture
("CAT"). We DENY the petition insofar as Doe
challenges his conviction-based removal on the ground that,
in determining whether his federal narcotics conviction
rendered him removable, the agency was required to apply a
"time-of- decision" rule and to compare his statute
of conviction to the version of the Controlled Substances
Act, 21 U.S.C. § 801 et seq., in effect during
his removal proceedings. We GRANT the petition to the extent
that Doe urges that the agency committed legal error in
denying his application for deferral of removal pursuant to
Petitioner: Whitney Elliott (Seymour James, Jr., Adriene
Holder, Maria E. Navarro, Charles Conroy, Ward Oliver, Stacy
Taeuber, Julie Dona, on the brief), The Legal Aid Society,
New York, NY.
Respondent: Dana M. Camilleri (Benjamin P. Mizer, Anthony P.
Nicastro, on the brief), Office of Immigration Litigation,
United States Department of Justice, Washington, DC.
Before: Livingston, Lynch, and Chin, Circuit Judges.
Ann Livingston, Circuit Judge
John Doe, a native and citizen of the Dominican Republic
admitted to the United States on September 13, 2007 as a
lawful permanent resident, seeks review of an April 13, 2016
decision of the Board of Immigration Appeals
("BIA") dismissing the appeal of an October 22,
2015 decision of an Immigration Judge ("IJ"), which
ordered Doe's removal and denied his application for
deferral of removal under the Convention Against Torture
("CAT"). See In re John Doe, No. A058 529
649 (B.I.A. Apr. 13, 2016), aff'g No. A058 529
649 (Immig. Ct. N.Y. City Oct. 22, 2015).
found removable based on his conviction in the Southern
District of New York for violating the Controlled Substances
Act ("CSA"), 21 U.S.C. § 801 et seq.
The agency determined that Doe's conviction involved the
violation of a United States law "relating to a
controlled substance (as defined in [the CSA at] section 802
of Title 21), " 8 U.S.C. § 1227(a)(2)(B)(i), and
that his crime constituted a drug trafficking aggravated
felony, 8 U.S.C. §§ 1101(a)(43)(B), (U); see
also 18 U.S.C. § 924(c)(2) (defining "drug
trafficking crime" to mean, in relevant part, "any
felony punishable under the Controlled Substances Act").
Doe challenges that determination, arguing that his CSA
conviction does not "categorically fit within the
'generic' federal definition" of a removable
offense, see Moncrieffe v. Holder, 569 U.S. 184, 190
(2013), because the drug schedules in the CSA ("CSA
Schedules") at the time of his conviction were broader
than the CSA Schedules at the time of his removal
proceedings. Doe also challenges the agency's denial of
CAT relief. For the reasons set forth below, we conclude that
the agency committed a legal error in assessing Doe's
claim to CAT relief, but that it did not err in determining
that Doe was removable by virtue of his federal drug
trafficking conviction. Accordingly, Doe's petition for
review is GRANTED in part and DENIED in part.
John Doe, a native and citizen of the Dominican Republic, was
admitted to the United States as a lawful permanent resident
in 2007. In 2014, Doe pleaded guilty in the Southern District
of New York to one count of conspiracy to distribute and
possess with intent to distribute heroin, in violation of 21
U.S.C. §§ 846, 841(b)(1)(C) of the CSA. Doe
cooperated with law enforcement upon his arrest in connection
with this crime and provided information that helped the
government convict the other individuals involved. Certified
Administrative Record ("CAR") at 864. He entered
his guilty plea pursuant to a cooperation agreement.
his conviction, Doe was charged as removable under the
Immigration and Nationality Act ("INA") for having
been convicted of a controlled substance offense, a drug
trafficking aggravated felony, and a conspiracy to commit a
drug trafficking aggravated felony. See 8 U.S.C.
§§ 1227(a)(2)(A)(iii), (B)(i); id.
§§ 1101(a)(43)(B), (U). Before the IJ, Doe admitted
the Government's factual allegations but contested
removability. He applied for asylum, withholding of removal,
and, as relevant here, CAT relief, alleging fear of the
co-defendants in his criminal case (because he had
cooperated) and of a rival family in the Dominican Republic.
Doe's judgment of conviction specifies that he conspired
to distribute heroin, the substantive statute underlying his
conspiracy renders it a crime to distribute or possess with
intent to distribute "a controlled substance, "
meaning any substance listed in one of the five CSA
Schedules. 21 U.S.C. § 841(a)(1); see also 21
U.S.C. § 802(6) (defining "controlled
substance" for purposes of the CSA). In January 2015,
during Doe's removal proceedings, the DEA removed
naloxegol from these Schedules. See Schedules of
Controlled Substances: Removal of Naloxegol From Control, 80
Fed. Reg. 3468, 3469 (Jan. 23, 2015) (codified at 21 C.F.R.
pt. 1308). Doe moved to terminate proceedings on the ground
that after naloxegol was removed from the CSA Schedules, his
conviction no longer categorically involved a controlled
substance, as required for his removal. CAR at 357. That is
so, argued Doe, because the Schedules were broader on the
date of his conviction than at the time of his removal
proceedings (because a person could be convicted of
distributing naloxegol in 2014, when Doe was convicted, but
not in 2015, when the Schedules were amended). Because of
this mismatch, Doe asserted, he was no longer convicted of a
crime categorically involving a federally controlled
substance and therefore could not be removed on this basis.
disagreed. In a written decision, the IJ explained that
Doe's motion to terminate was properly denied because
Matter of Ferreira, 26 I. & N. Dec. 415 (B.I.A.
2014), instructs that a court is to compare the statute of
conviction to the CSA Schedules in place at the time of
conviction. "In this case, " the IJ concluded,
"[Doe] was convicted of a crime in violation of the CSA.
Thus, at the time of his conviction, he was necessarily
convicted of a crime relating to a federally controlled
substance." CAR at 102-03. As relevant here, the IJ also
denied CAT relief, noting that Doe had conceded that only one
of his co-conspirators, a friend who posed no threat, was
even aware that he had cooperated, and concluding that Doe
failed to demonstrate that he would likely be tortured by his
co-defendants or the rival Dominican family if returned to
the Dominican Republic. Id. at 104- 06.
dismissed Doe's appeal. As to Doe's argument that his
conviction no longer categorically constitutes a crime
relating to a controlled substance, the BIA agreed with the
IJ that "the proper approach is to compare the statute
of conviction with the federal drug schedules as they existed
at the time of conviction, " not at the time of
removal proceedings. CAR at 5 (emphasis in original).
Regarding CAT relief, the BIA ...