Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Swaby v. Yates

United States Court of Appeals, First Circuit

January 30, 2017

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

          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.

          Before Barron, Stahl, Lipez, Circuit Judges.

          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).

         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. § 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. ยง 1308.11-1308.15. As a result, Rhode Island General Laws ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.