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Doe v. Sessions

United States Court of Appeals, Second Circuit

March 29, 2018

John Doe, Petitioner,
v.
Jefferson B. Sessions III, United States Attorney General, Respondent.

          Argued: September 26, 2017

         Petitioner 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 the CAT.

          For 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.

          For 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.

          Debra Ann Livingston, Circuit Judge

         Petitioner 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).[1]

         Doe was 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.

         BACKGROUND

         Petitioner 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.

         After 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.

         Although 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.

         The IJ 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.

         The BIA 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 ...


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