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.
Barron, Stahl, Lipez, Circuit Judges.
BARRON, CIRCUIT JUDGE.
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.
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. §
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).
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.
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.
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).
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.
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. § 1308.11-1308.15. As a result,
Rhode Island General Laws ...