Ochoa-Salgado v. Garland

5 F.4th 615

Arturo OCHOA-SALGADO, Petitioner,

v.Merrick GARLAND, U.S. Attorney General, Respondent.

No. 19-60519

United States Court of Appeals, Fifth Circuit.

FILED July 16, 2021

Felipe D. J. Millan, El Paso, TX, for Petitioner.

Bryan Stuart Beier, Senior Litigation Counsel, U.S. Department of Justice, Office of Immigration Litigation, James Adelbert Hurley, U.S. Department of Justice, Civil Division, Washington, DC, for Respondent.

Before Smith and Ho, Circuit Judges, and Barker, District Judge.^*

Jerry E. Smith, Circuit Judge:

Ochoa-Salgado is a Mexican citizen who was convicted in Texas of delivering cocaine. Because an Immigration Judge ("I.J.") found him removable, he asks for cancellation of removal. But, to qualify for that, Ochoa-Salgado must not have been convicted of an offense that falls within the Controlled Substances Act ("CSA"). Because his Texas conviction is included in the CSA, we deny the petition for review.

I.

Ochoa-Salgado is a Mexican citizen whom the United States admitted as a lawful permanent resident alien. In 2008, he was convicted in Texas of manufacture or delivery of cocaine in violation of Texas Health and Safety Code § 481.112. In 2013, the Department of Homeland Security initiated removal proceedings, which occurred in two parts: (A) proceedings that occurred before Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016), and (B) post- Mathis proceedings.

A.

The government initially claimed that Ochoa-Salgado was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) ("(A)(iii)"), which allows removal of aliens "convicted of an aggravated felony." The term "aggravated felony" includes "drug-trafficking crimes." Vasquez-Martinez v. Holder , 564 F.3d 712, 719 n.11 (5th Cir. 2009) (cleaned up). "[D]rug trafficking crimes," in turn, constitute "any felony punishable under the [CSA]." Id. (cleaned up). Thus, to determine whether a state drug offense constitutes an aggravated felony, the I.J. would need to "(1) identify the elements that make up [ § 481.112 ] and then (2) determine whether those elements" fall within the CSA. Alejos-Perez v. Garland , 991 F.3d 642, 647 (5th Cir. 2021) (cleaned up).

The government thus faced a hurdle in showing that § 481.112 falls within the CSA: "Delivery," under § 481.112, can occur through (1) actual transfer, (2) constructive transfer, or (3) an offer to sell.¹

But we had said that § 481.112 ’s offer-to-sell theory "does not fall within [a sentencing guideline's] definition of [a] ‘drug trafficking offense.’ " See Vasquez-Martinez , 564 F.3d at 718 (citation omitted). Apparently on the assumption that we would interpret the CSA congruently, the government became concerned that, on the record before it, it could not prove that Ochoa-Salgado had not been convicted under the offer-to-sell theory.

Thus, the government changed its ground for removal, now claiming that Ochoa-Salgado was removable because his § 481.112 offense "relat[ed] to a controlled substance" under § 1227(a)(2)(B)(i) ("(B)(i)"). Ochoa-Salgado conceded removability.

The government's switch initially seemed savvy, because (B)(i) conferred an uncontroversial basis for removal. Moreover, when Ochoa-Salgado later moved for cancellation of removal, he—instead of the government—bore the burden of showing that he had not been "convicted of any aggravated felony."² The I.J. found that he failed to meet that burden, and the Board of Immigration Appeals ("BIA") agreed. Ochoa-Salgado petitioned for review. See Ochoa-Salgado v. Yates , 673 F. App'x 454 (5th Cir. 2017) (per curiam).

B.

Before we ruled, however, Mathis , 136 S. Ct. at 2249, pulled the rug out from under the government's plan to remove Ochoa-Salgado by holding that use of record evidence isn't a given anymore in determining what crime an alien committed.³ Specifically, record evidence can elucidate the elements of a state criminal statute only if that statute is "divisible." Id. If the statute lists "multiple elements, each of which is part of a separate ... offense," then it is "divisible." Alejos-Perez , 991 F.3d at 647 (cleaned up). Conversely, if the statute lists "various factual means of committing a single ... offense," it is "indivisible." Id. (cleaned up). Mathis also gave guidance on determining divisibility. See Mathis , 136 S. Ct. at 2256–57.

That helped Ochoa-Salgado: Although we had said that § 481.112 is "divisible," we concluded, after Mathis , that it is "indivisible." United States v. Tanksley , 848 F.3d 347, 351–52 (5th Cir. 2017). And now that the I.J. could no longer use record evidence to parse § 481.112, the presence of the offer-to-sell theory would potentially render § 481.112 in its entirety outside the CSA.⁴ And, if § 481.112 falls outside the CSA, then it is not an aggravated felony, and Ochoa-Salgado would be eligible for cancellation of removal. See Vasquez-Martinez , 564 F.3d at 719 n.11 ; § 1229b(a)(3). On the initial petition to us, therefore, we remanded for the BIA to take another look in light of that new law. Ochoa-Salgado , 673 F. App'x at 455.

On remand, the government challenged what it had previously assumed was true, now claiming that § 481.112 ’s offer-to-sell theory falls within the CSA. The BIA agreed that "the conduct necessary to prove that an ‘offer to sell’ was made ... qualifies as a felony under the CSA."⁵ On petition for review, Ochoa-Salgado disagrees with that conclusion. We have jurisdiction to review questions of law on petition for review of a decision of the BIA, 8 U.S.C. § 1252(a)(2)(D), and our review is de novo , Vazquez v. Sessions , 885 F.3d 862, 870 (5th Cir. 2018).

II.

We must decide (A) whether our precedent resolves this case and (B) if not, whether the offer-to-sell theory is included in the CSA. In answer, we conclude that precedent provides no answer, and the offer-to-sell theory does fall within the CSA.

A.

Section 481.112 ’s offer-to-sell theory does not fit within U.S.S.G. § 2L1.2 ’s former definition⁶ of a "[d]rug trafficking offense"⁷ or U.S.S.G. § 4B1.2 ’s definition of a "controlled substance offense."⁸ Moreover, in two cases, we relied on a governmental concession that an offer-to-sell theory is not within the CSA.⁹ None of that authority binds us.

First, because removal and sentencing-guideline cases share the same categorical approach,¹⁰ decisions that determine whether the offer-to-sell theory falls within a guideline could be helpful here if that guideline were relevantly analogous to the CSA. Although §§ 2L1.2 and 4B1.2 contain language that resembles the CSA,¹¹ the CSA, unlike those guidelines, criminalizes attempted transfers of drugs.¹² Thus, assuming that the CSA's inclusion of attempt is relevant to the offer-to-sell theory, see Part II.B, infra , that provision differentiates the CSA from §§ 2L1.2 and 4B1.2. As a result, our opinions interpreting those provisions do not constrain our interpretation of the CSA.

Second, in two cases, we relied on the government's concession that an offer-to-sell theory fell outside the CSA. See Ibarra-Luna , 628 F.3d at 715–16 ; Ibanez-Beltran , 858 F.3d at 296. Besides our acknowledgment of those concessions, we made no express conclusions about whether an offer to sell falls within the CSA. See Ibarra-Luna , 628 F.3d at 715–16 ; Ibanez-Beltran , 858 F.3d at 296. We must decide, therefore, whether those panels’ reliance on a party's concession binds us.

Our en banc court declined to decide how to apply the "rule of orderliness in cases where a party made an explicit concession before a prior panel that is dispositive in a future case." United States v. Castillo-Rivera , 853 F.3d 218, 221 n.1 (5th Cir. 2017) (en banc). But we have made some points clear. For instance, a panel's assumption "is not binding if the adverse party did not challenge and we did not consider" that issue.¹³ Thus, the rule of orderliness applies where (1) a party raises an issue¹⁴ and (2) a panel gives that issue reasoned consideration .¹⁵ But where a party concedes an issue, that party does not raise it. And where a panel relies on that concession, without further analysis, it does not give the issue reasoned consideration . Thus, our unexamined reliance on a party's concession does not bind a future panel.

And that rule makes sense: "A party can concede a legal issue for divers reasons." Castillo-Rivera , 853 F.3d at 234 (Smith, J., dissenting). For instance, a lawyer may "decide that it is better to focus the court on other perceptively more winnable issues" or "wish to avoid disclosing embarrassing facts to the judge or jury." Id. Thus, a party's idiosyncratic interests "may prevent the adequate presentation of all the aspects of a case and thus induce judicial neglect of those aspects, with resultant inadequacy in the judicial generalizations." Aero Spark Plug Co. v. B. G. Corp. , 130 F.2d 290, 299 (2d Cir. 1942) (Frank, J., concurring). In a word, if we found ourselves bound by our previous reliance on a concession, that would impose an "extreme version of the rule of orderliness." Castillo-Rivera , 853 F.3d at 235 (Smith, J., dissenting). We decline to do so.

In short, where a party concedes an issue and a panel fails to give it reasoned consideration, a ruling relying on that concession isn't an affirmation of the conceded proposition that operates as binding precedent. Thus, the rule of orderliness does not apply to our previous reliance on the government's concession that an offer to sell falls outside the CSA.

B.

Because none of that precedent binds us, we must decide whether § 481.112 ’s offer-to-sell theory falls within the CSA, which makes it unlawful for "any person knowingly or intentionally ... to ... distribute ... a controlled substance." § 841(a)(1) (emphasis added). "Distribute," in turn, "means to deliver ... a controlled substance." § 802(11) (emphasis added). "Deliver" includes the "attempted transfer of a controlled substance." § 802(8) (emphasis added). And, to establish attempt, "the government must prove...