Alexis v. Barr

960 F.3d 722

Richard Lawrence ALEXIS, Petitioner

v.William P. BARR, U. S. Attorney General, Respondent

No. 18-60748

United States Court of Appeals, Fifth Circuit.

FILED June 8, 2020

Amber Constance Maxfield-Gracia, Houston, TX, Sheridan Gary Green, Sheridan Green Law, P.L.L.C., Houston, TX, William James O'Donnell, III, Law Office of William J. O'Donnell, P.C., Centennial, CO, Naimeh Salem, Naimeh Salem & Associates, P.L.L.C., Houston, TX, for Petitioner.

Maarja Tiganik Luhtaru, Trial Attorney, U.S. Department of Justice, Civil Division/OIL, Washington, DC, for Respondent.

Before DENNIS, GRAVES, and WILLETT, Circuit Judges.

JAMES E. GRAVES JR., Circuit Judge:

Richard Lawrence Alexis ("Alexis") petitions this court for review of an order of the Board of Immigration Appeals ("BIA") affirming the immigration judge’s ("IJ’s") decision finding him removable under Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1227(a)(2)(B)(i). Alexis also seeks review of the BIA’s denial of his applications for asylum and withholding of removal and protection under the Convention Against Torture ("CAT"). For the following reasons, we DENY in part and DISMISS in part Alexis’s petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Alexis, a native and citizen of Trinidad and Tobago, entered the United States in 1991 as a legal permanent resident. His mother, step-father, three siblings, and young daughter are U.S. citizens. In November 2016, Alexis pled guilty and was sentenced to one year in prison for the Texas offense of possession of a controlled substance in an amount of less than one gram.

On January 23, 2018, the Department of Homeland Security ("DHS") initiated removal proceedings against Alexis, alleging that he was removable as an admitted alien under 8 U.S.C. § 1227(a)(2)(B)(i) for a conviction relating to a controlled substance, specifically cocaine. At his initial hearing, Alexis admitted that he was convicted of Texas’s controlled substance offense but denied that the offense involved cocaine because the judgment of conviction did not specify the type of controlled substance. Accordingly, Alexis contested the charge of removability under 8 U.S.C. § 1227(a)(2)(B)(i).

A. Motion to Terminate Removal Proceedings

Shortly after his initial hearing, Alexis filed a motion to terminate removal proceedings, arguing that his state conviction did not qualify as a federal controlled substance offense ("CSO") and that DHS could not meet its burden of establishing removability. The IJ denied the motion to terminate removal proceedings, applying the categorical approach to determine if Texas’s cocaine offense¹ was a categorical match to the generic federal offense. Although the IJ found Texas’s definition of "cocaine," unlike the federal definition, includes position isomers of cocaine, the IJ determined that Alexis could not establish a realistic probability that Texas prosecutes individuals for possession of position isomers of cocaine. The BIA affirmed the IJ’s finding that Alexis could not establish a realistic probability that Texas prosecutes possession of position isomers of cocaine.

B. Applications for Asylum, Withholding of Removal, and CAT

Alexis also submitted applications for asylum and withholding of removal on account of his membership in three particular social groups ("PSG"): "children unable to leave a family relationship"; "family members of Alexis’s cousins who are gang members"; and "individuals in Trinidad and Tobago with mental illnesses exhibiting psychotic features who are unable to assimilate into society." The IJ made a positive credibility determination but determined that Alexis could not establish membership in a distinct, cognizable PSG. First, the IJ determined the proposed PSG of "children unable to leave family relationships" failed to satisfy the social distinction or social recognition requirement and that Alexis could not demonstrate a well-founded fear of future persecution because his abusive father did not harm him when he spent nearly two years in Trinidad and Tobago after a 2009 deportation. Second, the IJ determined that "family members of Alexis’s cousins who are gang members" was an "inherently diffuse" group lacking particularity. Third, the IJ determined that "individuals in Trinidad and Tobago with mental illnesses exhibiting psychotic features who are unable to assimilate into society" was too amorphous and too subjective to satisfy the particularity requirements for a PSG and that Alexis was not harmed on account of his mental illness when he returned to Trinidad and Tobago after a 2009 deportation. The IJ also denied withholding of removal under 8 U.S.C. § 1231(b)(3), which has more stringent standards than asylum. Finally, the IJ found Alexis ineligible for protection under CAT because there was insufficient evidence that Alexis would more likely than not be tortured by the Trinidad and Tobago government or by the government’s acquiescence or willful blindness of private entities committing torture. Accordingly, the IJ ordered Alexis to be deported.

The BIA affirmed the IJ’s determination that Alexis had not established past persecution or fear of future persecution on account of his membership in a cognizable PSG. The BIA also affirmed the IJ’s findings that Alexis could not satisfy the requirements for asylum or withholding of removal and was ineligible for protection under the CAT. Alexis timely filed a petition for review of the BIA decision and also sought a stay of removal in the Fifth Circuit. See 8 U.S.C. § 1252(b)(1). The stay of removal was denied, and Alexis has since been physically removed from the United States. We have jurisdiction to review the final order of removal as Alexis has exhausted his claim before the BIA; though our review is limited by statute in certain respects. See 8 U.S.C. §§ 1252(d)(1), 1252(a)(2)(D).

II. STANDARD OF REVIEW

"When reviewing a BIA decision, questions of law are reviewed de novo," but we defer "to the BIA’s interpretation of immigration statutes and regulations." Vazquez v. Sessions , 885 F.3d 862, 870 (5th Cir. 2018) (citing Danso v. Gonzales , 489 F.3d 709, 712–13 (5th Cir. 2007) ). We may "only consider the IJ’s decision to the extent that it influenced the BIA." Shaikh v. Holder , 588 F.3d 861, 863 (5th Cir. 2009). We afford "no deference ... in reviewing the BIA’s interpretation of state criminal law." Sarmientos v. Holder , 742 F.3d 624, 627 (5th Cir. 2014) ; see also Omagah v. Ashcroft , 288 F.3d 254, 258 (5th Cir. 2002) ("Determining a particular federal or state crime’s elements lies beyond the scope of the BIA’s delegated power or accumulated expertise.").

III. DISCUSSION

A. Whether Alexis’s conviction for possession of cocaine in Texas is categorically a disqualifying controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i) as a ground for removability.

On appeal, Alexis argues that Texas’s definition of "cocaine" is categorically overbroad and indivisible. Alexis maintains that DHS cannot meet its "burden of establishing clear and convincing evidence" that he is deportable and asks us to grant his petition for review and vacate the BIA’s order. See 8 U.S.C. § 1229a(c)(3)(A). To determine if a state law conviction renders an alien eligible for removal under the INA, courts apply the categorical approach. Vazquez , 885 F.3d at 870. Under this approach, we only look to the state and federal statutory definitions; "[a]n alien’s actual conduct is irrelevant to the inquiry." Mellouli v. Lynch , 575 U.S. 798, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015). "But, the inquiry does not stop there. To show that the Texas statute is broader than its federal counterpart, [Alexis] must also show ‘a realistic probability’ that Texas will prosecute the ‘conduct that falls outside the generic definition of a crime.’ " Vetcher v. Barr , 953 F.3d 361, 367 (5th Cir. 2020) (quoting Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ).

The parties do not dispute that Texas’s definition of "cocaine" is facially broader than the federal definition of "cocaine." "Cocaine," as defined under Texas law, includes "its salts, its optical, position , and geometric isomers,² and the salts of those isomers." Tex. Health & Safety Code § 481.102(3)(D) (emphasis added). However, the Controlled Substances Act covers "cocaine, its salts, optical and geometric isomers, and salts of isomers," but does not list position isomers of cocaine. See 21 U.S.C. § 812(c), Schedule II(a)(4); see also 21 U.S.C. § 802(17) (defining "isomer" in Schedule II(a)(4) as "any optical or geometric isomer"). Thus, we are not satisfied that there is a categorical match between Texas Health & Safety Code § 481.102(3)(D)(i) and Federal Schedule II(a)(4) because Texas’s definition of "cocaine" is facially broader than its federal analog. Vazquez , 885 F.3d at 871.

The crux of the parties’ dispute hinges on whether Alexis has demonstrated "a realistic probability" that Texas will prosecute the "conduct that falls outside the generic definition of a crime." Moncrieffe , 569 U.S. at 191, 133 S.Ct. 1678 (2013). To do so, Alexis must "point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner." Vazquez , 885 F.3d at 873 (citing Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). The Fifth Circuit creates "no exception to the actual case requirement articulated in Duenas-Alvarez where a court concludes a state statute is broader on its face." United States v. Castillo-Rivera , 853 F.3d 218, 223 (5th Cir. 2017) (emphasis added) (citing Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815 ). Because Alexis cannot demonstrate that the statute was applied non-generically in his own case, we examine whether Alexis can point to other cases where Texas has prosecuted or currently prosecutes individuals for possession of "position isomers of cocaine."³

None of...