     Case: 18-60449      Document: 00515351988    Page: 1   Date Filed: 03/19/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                   No. 18-60449                   March 19, 2020
                                                                   Lyle W. Cayce
IVAN ALEXANDROVICH VETCHER,                                             Clerk


                Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals


Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.
CARL E. STEWART, Circuit Judge:
      Petitioner Ivan Vetcher (“Vetcher”) contests his detention and removal
pursuant to Section 241 of the Immigration and Nationality Act (“INA”) (8
U.S.C. § 1231) and Section 202 of the Controlled Substances Act (21 U.S.C. §
812). He seeks review of the May 11, 2018 decision of the Board of Immigration
Appeals (“BIA”) that affirmed the Immigration Judge’s (“IJ”) decision ordering
his removal from the United States. For the reasons set forth herein, we DENY
Vetcher’s petition for cancellation of removal.
           I.     FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
      Vetcher is a 29 year-old native of Belarus whose family fled to the United
States in 2001 as refugees; he was 11 years old at the time. He became a lawful
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                                  No. 18-60449
resident in 2005 at the age of 15. He is married to an American citizen with
whom he shares a 5 year-old son and two step-children from his wife’s previous
relationship. In 2009, 2011, and 2012, Vetcher was arrested on charges
including burglary, obstruction of justice, and obstructing police. In April 2014,
Vetcher was arrested for selling psychedelic/hallucinogenic mushrooms.
Vetcher pled guilty to two counts of “deliver[ing], by actual transfer,
constructive transfer and offer to sell to another, a controlled substance,
namely, psilocybin/psilocin, in an amount of four grams or more but less than
400 grams,” pursuant to Texas Health & Safety Code § 481.113(d). In May
2014, Vetcher was sentenced to ten years of imprisonment on each count to run
concurrently, though each sentence was fully suspended in favor of a ten-year
period of community supervision.
      On July 2, 2014, the Department of Homeland Security (“DHS”)
personally served Vetcher with a notice to appear (“NTA”). It notified Vetcher
of his removability based upon the April 2014 drug trafficking conviction and
ordered him to appear at removal proceedings before an IJ in Dallas, Texas, on
a “date and time to be set.” Vetcher was detained pending his removal
proceedings, and the NTA was filed with the immigration court on July 8, 2014.
On July 10, 2014, the immigration court issued Vetcher a “notice of hearing”
scheduling his initial hearing before the IJ for July 17, 2014 at 8:30 a.m.
B. Procedural History
      The DHS charged Vetcher with deportability as an alien charged with
an “aggravated felony.” In its August 6, 2014 decision, the IJ sustained the
aggravated felony charge and found Vetcher ineligible for asylum and
withholding of removal on the basis that the aggravated felony charge was a
“particularly serious crime.” Filing pro se, Vetcher appealed that decision to
the BIA. The BIA dismissed the appeal in December 2014, holding that the
aggravated felony drug charge was indeed a particularly serious crime which
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prevented Vetcher from seeking asylum and withholding of removal. Still
proceeding pro se, Vetcher then sought relief from this court when he filed a
petition for stay of removal pending review in January 2015. A couple of
months later in March 2015, Vetcher filed a motion to re-open his case with
the BIA.
      On April 9, 2015, this court granted Vetcher’s petition to stay the
removal pending review, holding that “a Texas conviction for delivery of a
controlled substance by offering to sell is not categorically an ‘aggravated
felony,’ as defined by the INA because it penalizes conduct that does not
amount to a felony under the Controlled Substances Act.” Vetcher v. Holder,
No. 15-60047, Slip Op. (5th Cir. Apr. 9, 2015). On June 25, 2015, the BIA sua
sponte re-opened and remanded the proceedings back to the IJ for re-
consideration of Vetcher’s status as an alien convicted of an aggravated felony.
After the proceedings were remanded, the government withdrew the
aggravated felony charge and asserted a different basis for removal—Section
237(a)(2)(B)(i) of the INA—which provides in relevant part that “[a]ny alien
who . . . has been convicted of a violation of . . . any law . . . of a State . . .
relating to a controlled substance (as defined in Section 802 of Title 21) . . . is
deportable.” 8 U.S.C. § 1227(a)(2)(B)(i).
      In its October 27, 2015 decision on remand, the IJ denied Vetcher’s
petition for withholding of removal and cancellation of removal because, after
balancing the equities, it found that Vetcher’s admitted drug trafficking and
no signs of “real rehabilitation” from that conduct outweighed the fact that he
was remorseful for his drug trafficking and that he has family in the United
States. Vetcher appealed this decision to the BIA again, as a pro se litigant.
      In its November 8, 2016 decision, the BIA affirmed in part the IJ’s
findings that Vetcher’s 2014 conviction under Texas Health & Safety Code §
481.113(d) constitutes both a controlled substance violation, rendering Vetcher
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                                 No. 18-60449
removable, and a particularly serious crime, rendering him ineligible for
withholding of removal under the INA. However, the BIA remanded the IJ’s
denial of Vetcher’s petition for cancellation of removal stating that the IJ’s
decision “was not supported by complete factual findings.” On October 4, 2017,
the IJ denied Vetcher’s application for discretionary cancellation of removal
finding, inter alia, that Vetcher’s claim that he had rehabilitated and turned
away from drug sales was “severely undercut by [Vetcher’s] continuing
argument that he is not guilty of any crime.” On appeal, the BIA restated and
declined to revisit these conclusions in its May 11, 2018 decision while
affirming the IJ’s October 4, 2017 decision to deny Vetcher’s petition for
cancellation of removal from the United States. Vetcher timely appealed to this
court, requesting that the court re-open his removal proceedings and allow him
to re-litigate his claims with the adequate legal resources.
                       II.   STANDARD OF REVIEW
      “When reviewing a BIA decision, questions of law are reviewed de novo,
but this Court defers 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)); cf. Gomez-Palacios
v. Holder, 560 F.3d 354, 358 (5th Cir. 2009) (“[T]his court accords deference to
the BIA’s interpretation of immigration statutes unless the record reveals
compelling evidence that the BIA’s interpretation is incorrect.”). Though our
review is generally limited to the BIA’s decision, we may also review the IJ’s
decision when it influences the BIA’s decision or where the BIA has adopted
all or part of the IJ’s reasoning. Le v. Lynch, 819 F.3d 98, 104 (5th Cir. 2016).




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                              III.    DISCUSSION
A. Though Vetcher’s state law conviction is not a facial categorical
match to the federal schedule of controlled substances, there is no
realistic probability that Texas courts will apply its statute to conduct
that falls outside of the scope of the federal analog.

      Vetcher argues that his state law conviction is not a categorical match to
the federal schedule of controlled substances because there are at least 43
substances in Penalty Group 2-A that were not on any federal schedule at the
time of his conviction. 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. As explained in Vazquez:
      The categorical approach analyzes whether the elements of the
      state conviction are the same as or narrower than the elements of
      the generic removability offense under federal law, while ignoring
      the particular facts of the case. A state offense is a categorical
      match with a generic federal offense only if a conviction of the state
      offense would necessarily involve proving facts that would
      establish a violation of the generic federal offense. See Moncrieffe
      v. Holder, 569 U.S. 184, 190, 133 S. Ct. 1678, 185 L.Ed.2d 727
      (2013). When comparing statutes under the categorical approach,
      courts only look to the statutory definitions; “[a]n alien’s actual
      conduct is irrelevant to the inquiry.” [Mellouli v. Lynch, 135 S. Ct.
      1980, 1986 (2015)]. A court thus “must presume that the conviction
      rested upon nothing more than the least of the acts criminalized”
      and determine whether those acts correspond to the generic
      federal offense referenced in the removal statute. Moncrieffe, 569
      U.S. at 190–91, 133 S. Ct. 1678 (internal quotation marks,
      brackets, and citation omitted).

Id. at 870–71.
      However, if “a state statute criminalizes offenses that fall outside of the
federal generic definition, there is not a categorical match.” Id. at 871. “If there
is a categorical match between the predicate offense and generic definition, the
inquiry ends there.” Id. (citing Esparza–Rodriguez v. Holder, 699 F.3d 821, 825


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                                   No. 18-60449
(5th Cir. 2012)). When there is a categorical match, a state law conviction
triggers removal under the INA. Id.
      Texas Health & Safety Code § 481.113(a) provides that “a person
commits an offense if the person knowingly manufactures, delivers, or
possesses with intent to deliver a controlled substance listed in Penalty Group
2 or 2-A.” Subsection (d) then provides, “[a]n offense under Subsection (a) is a
felony of the first degree if the amount of the controlled substance to which the
offense applies is, by aggregate weight, including adulterants or dilutants, four
grams or more but less than 400 grams.” Id. at § 481.113(d). Thus, the elements
we examine are: the (1) manufacture, delivery, or possession with intent to
deliver, (2) 4 grams or more but less than 400 grams of, (3) a controlled
substance listed in “Penalty Group 2 or 2-A.” Id. at § 481.113(a).
      Section 237(a)(2)(B)(i) of the INA provides, in relevant part, that “[a]ny
alien who . . . has been convicted of a violation of . . . any law or regulation of a
State [or] the United States . . . relating to a controlled substance (as defined
in Section 102 of the Controlled Substances Act (21 U.S.C. [§] 802)) is
deportable.” 8 U.S.C. § 1227(a)(2)(B)(i). The Controlled Substances Act defines
“controlled substance” as “a drug or other substance, or immediate precursor,
included in schedule I, II, III, IV, or V of part B of this subchapter.” 21 U.S.C.
§ 802(6).
      We are not satisfied that there is a categorical match between Texas
Health & Safety Code § 481.113(a) and the INA, §1227(a)(2)(B)(i) because
Texas’s statute of conviction is facially broader than its federal analog.
Vazquez, 885 F.3d at 871. There are at least six substances listed in Penalty
Group 2 that do not appear on any federal schedule. Compare TEX. HEALTH &
SAFETY CODE § 481.103(a)(1) with 21 U.S.C. § 812. The same is true for Penalty
Group 2-A. Vetcher identified at least 43 substances that are not federally
controlled. Compare TEX. HEALTH & SAFETY CODE § 481.1031(a) with 21 U.S.C.
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§ 812. For this reason, there is no categorical match. Vazquez, 885 F.3d at 871
(holding that the BIA erred in finding that there was a categorical match
between the Oklahoma statute and the INA because the Oklahoma statute
prohibited at least two substances that are not on any federal schedule).
      But, the inquiry does not stop there. To show that the Texas statute is
broader than its federal counterpart, Vetcher must also show “a realistic
probability” that Texas will prosecute the “conduct that falls outside the
generic definition of a crime.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013).
To do so, the detainee 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; see United States v. Castillo-Rivera, 853 F.3d 218,
223 (5th Cir. 2017) (en banc) (“[A] defendant must point to an actual state case
applying a state statute in a nongeneric manner, even where the state statute
may be plausibly interpreted as broader on its face.”).
      Vetcher has not identified case law demonstrating a realistic probability
that Texas would apply § 481.113(a) to conduct that falls outside of the federal
definition. First, he pointed to anonymous state arrest records from June 2012
and August 2013 where suspects were arrested for substances that were not
yet federally controlled until 2014. Then, he points to State v. Moseley, No. 09-
14-00279-CR, 2015 WL 474331 (Tex. App.—Beaumont Feb. 4, 2015, pet. ref’d),
but the substance at issue there was a federally controlled substance. 2015 WL
474331 at *4. Then, in his reply brief, he cites to the State’s brief in Carter v.
Texas, No. 07-18-00043-CR, 2018 WL 6844514 (Tex. App.—Amarillo Dec. 19,
2018), a case currently pending in the Texas intermediate appellate court,
arguing that, at the time, the state prosecuted a substance (fluoro-ADB) that
was not on a federal schedule until months later. See State’s Br., 2018 WL
6844514 at *23–24, *27–29; see also Federal Schedule I, 21 C.F.R. § 1308.11
(eff. Apr. 10, 2017).
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      Again, “to successfully argue that a state statute is nongeneric, a
defendant must provide actual cases where state courts have applied the
statute in that way.” Castillo-Rivera, 853 F.3d at 223. Because Carter is still
pending in Texas courts, it necessarily is not settled law within the state which,
in turn, does not make it reliable in this context. Reliance on a brief filed in
that case is not the law. Nothing Vetcher has provided demonstrates a realistic
probability that the courts in Texas will apply § 481.113(a) to conduct that falls
outside of what the federal analog controls. Accordingly, we hold that there is
not a realistic probability that Texas will apply § 481.113(a) in a nongeneric
manner. Therefore, Vetcher is not eligible for cancellation of removal.
B. Vetcher is Ineligible for Withholding of Removal because his State
Law Conviction is a “Particularly Serious Crime” within the meaning
of the Statute

      Vetcher contests the determination that he was convicted of a
particularly serious crime because his conviction was found to not be an
aggravated felony. In his view, the term “particularly serious crime” is limited
to aggravated felonies. We disagree.
      Section 241 of the INA provides an exception to removal when an alien’s
life or freedom would be jeopardized for any of the enumerated reasons. 8
U.S.C. § 1231(b)(3)(A). However, that exception does not apply to an alien
“having been convicted by a final judgment of a particularly serious crime
[who] is a danger to the community of the United States.” Id. at §
1231(b)(3)(B)(ii).
      For purposes of clause (ii), an alien who has been convicted of an
      aggravated felony (or felonies) for which the alien has been
      sentenced to an aggregate term of imprisonment of at least 5 years
      shall be considered to have committed a particularly serious crime.
      The previous sentence shall not preclude the Attorney General
      from determining that, notwithstanding the length of sentence
      imposed, an alien has been convicted of a particularly serious
      crime.
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Id. at § 1231(b)(3)(B)(iv).
      Vetcher contends that the above clarifying language (1) limits
particularly serious crimes to aggravated felonies with a minimum five-year
prison term and (2) limits the Attorney General’s discretion to determine other
particularly serious crimes to aggravated felonies with prison terms up to five
years in length. The government counters that a crime need not be an
aggravated felony in order to be a “particularly serious crime.” Specifically, the
government argues that the first sentence in the statutory language that
clarifies the second clause of § 1231(b)(3)(B) is a declaration that aggravated
felonies are per se particularly serious crimes. It then argues that the second
sentence grants the Attorney General the discretion to determine what is and
is not a “particularly serious crime.” We agree with the government for two
reasons: (1) there is uniform federal circuit authority supporting its view, and
(2) we understand Congress to give distinct meaning to the terms “aggravated
felony” and “particularly serious crime” such that adopting Vetcher’s reading
of the statute would render the term “particularly serious crime” superfluous.
      The First, Second, Fourth, Seventh, Ninth, and Tenth Circuits have all
held that the phrase “particularly serious crime” is not limited to aggravated
felonies, and have all said that determining whether a non-aggravated felony
offense is a “particularly serious crime” should be done on a case-by-case basis.
E.g., Valerio-Ramirez v. Sessions, 882 F.3d 289, 296–97 (1st Cir. 2018);
Delgado v. Holder, 648 F.3d 1095, 1104 (9th Cir. 2011); Gao v. Holder, 595 F.3d
549, 554 (4th Cir. 2010); N-A-M- v. Holder, 587 F.3d 1052, 1056 (10th Cir.
2009); Nethagani v. Mukasey, 532 F.3d 150, 156–57 (2d Cir. 2008); Ali v.
Achim, 468 F.3d 462, 470 (7th Cir. 2006). Most recently, the Third Circuit,
sitting en banc, overruled its decision in Alaka v. Att’y Gen., 456 F.3d 88 (3d
Cir. 2006), when it held that, in the context of withholding of removal, “both


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                                 No. 18-60449
aggravated felonies and other offenses can be particularly serious crimes.”
Bastardo-Vale v. Att’y Gen., 934 F.3d 255, 267 (3d Cir. 2019) (en banc).
      In Bastardo-Vale, the Third Circuit was tasked with interpreting the
phrase “particularly serious crime” within the context of the asylum statute
and the withholding of removal statute, both of which are codified in the INA.
See 8 U.S.C. § 1158(b); see also 8 U.S.C. § 1231. The petitioner there sought
both asylum and withholding of removal, unlike Vetcher who seeks only
withholding of removal as he is ineligible for asylum. See 8 U.S.C. §
1158(b)(2)(A)(ii). However, because the phrase is used in different sections of
the same statute and in the same context of deportation relief, we agree that
there should be a singular meaning of the one phrase “particularly serious
crime” so that there is consistency in the interpretation of the INA as a whole.
See Bastardo-Vale, 934 F.3d at 267 n.6 (“The differences in the statutes do not
mean that the phrase ‘particularly serious crime’ should be given a different
meaning . . . .” in the withholding of removal and asylum contexts); see also
Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507, 1512
(2019) (“In all but the most unusual situations, a single use of a statutory
phrase must have a fixed meaning. We therefore avoid interpretations that
would attribute different meanings to the same phrase.”) (internal citations
omitted); Smith v. City of Jackson, Miss., 544 U.S. 228, 233 (2005) (holding
that “when Congress uses the same language in two statutes having similar
purposes, particularly when one is enacted shortly after the other, it is
appropriate to presume that Congress intended that text to have the same
meaning in both statutes.”).
      Likewise, we also agree with the Bastardo-Vale en banc court that
Congress’s use of the terms “aggravated felony” and “particularly serious
crime” was intentional and should be given their separate meanings. Bastardo-
Vale, 934 F.3d at 266. If Congress intended otherwise, then it would have not
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included the term alongside “aggravated felony.” See id. (“To say that only
aggravated felonies are ‘particularly serious crimes’ would render the words
‘particularly serious crime’ surplusage.”). Accordingly, we conclude that
Vetcher is ineligible for withholding of removal because the IJ’s determination,
along with the BIA’s affirmance, that Vetcher was convicted of a “particularly
serious crime” was not error.
C. Vetcher’s Due Process Rights Were Not Violated
      “[T]he Fifth Amendment entitles aliens to due process of law in
deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). Though
removal proceedings are civil, not criminal, in nature, removal proceedings
must be conducted according to standards of fundamental fairness. See
Olabanji v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992); see also In re Beckford,
22 I. & N. Dec. 1216, 1225 (B.I.A. 2000) (“A removal hearing must be conducted
in a manner that satisfies principles of fundamental fairness.”). This includes
an alien’s right to a full and fair hearing. See Matter of M-A-M, 25 I. & N. Dec.
474, 479 (B.I.A. 2011). To succeed on a due process challenge to removal
proceedings, a detainee must make an initial showing of substantial prejudice.
Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997). To show a due process
violation due to inadequate law library resources, a detainee must
“demonstrate that the alleged shortcomings in the library or legal assistance
program hindered his efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S.
343, 351 (1996).
      Vetcher argues that he has satisfied Lewis by showing that he was
prejudiced in his pursuit of withholding and, later, cancellation of removal.
Specifically, he contends that he complained on numerous occasions about the
deficiency of the detention facility’s law library while he was detained. He
argues that his pro se efforts to challenge his detention, the finding of his
removability, and the finding that he was ineligible for cancellation for removal
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were hampered by the absence of Title 21 of the United States Code, Texas
statutes, case law interpreting what constitutes a “particularly serious crime,”
United States Supreme Court precedent, and “several relevant federal cases
[that] the Government cited in its briefing.” We disagree.
      As a pro se litigant, Vetcher successfully secured an initial stay of
removal from this court. Two separate BIA decisions remanded his proceedings
back to the IJ. He also preserved all relevant issues for appeal. Vetcher’s
intermittent successes throughout the course of his pro se efforts are beyond
admirable. None of the perceived hindrances Vetcher points out stopped him
from being able to research the law, draft, mail and file his pleadings, and
appeal his claims for the better part of four years without the assistance of
legal counsel. Implicitly, Vetcher argues that since he did not win on his claims
(specifically the categorical match argument) and because those materials
were unavailable, that there was a due process violation. To his detriment, that
is not the legal standard. Accordingly, we find no due process violation here.
                            IV.    CONCLUSION
      For the aforementioned reasons, we DENY Vetcher’s petition for
cancellation of removal.




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