     Case: 16-60211    Document: 00514396146       Page: 1   Date Filed: 03/21/2018




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

                                    No. 16-60211
                                                                         Fifth Circuit

                                                                       FILED
                                                                 March 21, 2018

IVAN BERNABE RODRIGUEZ VAZQUEZ,                                   Lyle W. Cayce
                                                                       Clerk
             Petitioner,

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

             Respondent.




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


                       ON PETITION FOR REHEARING
Before JONES, SMITH, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Treating Respondent’s motion to amend opinion as a petition for panel
rehearing, the petition for panel rehearing is GRANTED. The prior opinion,
Vazquez v. Sessions, 881 F.3d 396 (5th Cir. 2018), is withdrawn, and the
following opinion is substituted:
      Ivan Bernabe Rodriguez Vazquez (“Vazquez”) appeals the Board of
Immigration Appeals’s (“BIA”) decision that he was eligible for deportation
pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) for possessing a controlled substance in
violation of Oklahoma law. Vazquez challenges both the determination that
the Oklahoma schedule of controlled substances was a categorical match to the
    Case: 16-60211     Document: 00514396146      Page: 2    Date Filed: 03/21/2018



                                  No. 16-60211
federal schedule and that in order to terminate his order of removal he was
required to show a “realistic probability” that Oklahoma actually prosecutes
cases involving substances not included in the federal schedules.
      The Fifth Circuit has held that the realistic probability test applies
whenever the categorical approach is employed. See United States v. Castillo-
Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc), cert. denied, No. 17-5054, 2017
WL 2855255 (Dec. 4, 2017). Given that the state statute is facially broader than
its federal analog, Castillo-Rivera suggests that Vazquez can prevail only if the
realistic probability test is satisfied. But he fails to address the question in his
brief on appeal, thus waiving the only argument available to him in the wake
of Catillo-Rivera. Accordingly, we DENY the petition for review.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      Vazquez, a native and citizen of Mexico, was admitted to the United
States as a lawful permanent resident around October 12, 2007. On August 28,
2013, Vazquez was convicted in Oklahoma for possession of a controlled and
dangerous substance, cocaine, in violation of Oklahoma Statute Annotated
title 63, § 2-402(A)(1) (2013). Vazquez pleaded guilty and was sentenced to a
deferred term of imprisonment of three years, to serve 30 days, followed by 24
months of supervised probation. On July 23, 2015, the U.S. Department of
Homeland Security (“DHS”) issued Vazquez a Notice to Appear, charging that
he was subject to removal pursuant to § 237(a)(2)(B)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i), because he was convicted of a
controlled substance violation.
      Vazquez denied the factual allegations pertaining to his conviction,
noting that the judgment was deferred and, under Oklahoma law, the
conviction would be automatically expunged upon his satisfactory completion
of the probation term. He also sought, and received, several continuances while
he collaterally attacked his conviction in state court. The Immigration Judge
                                         2
    Case: 16-60211    Document: 00514396146     Page: 3   Date Filed: 03/21/2018



                                 No. 16-60211
(“IJ”) found by clear and convincing evidence that Vazquez was convicted of
cocaine possession based on documentary evidence submitted by the DHS. The
documentary evidence provided that Vazquez pleaded guilty in 2013 to
“possession of controlled dangerous substance - cocaine.” The IJ concluded that
Vazquez’s conviction was valid for immigration purposes, and he was
removable as charged.
      Vazquez appealed the IJ’s decision to the BIA. He argued, inter alia, that
the IJ failed to conduct a categorical analysis of the statute of conviction, the
statute was not divisible, and violating Oklahoma’s controlled substances
statute did not equate to violating the federal Controlled Substances Act
because the Oklahoma and federal schedules did not categorically match. The
BIA dismissed the appeal, concluding that Vazquez was removable pursuant
to 8 U.S.C. § 1227(a)(2)(B)(i) because his conviction for possession of a
controlled and dangerous substance in violation of Oklahoma state law was a
categorical match to the corresponding federal offense. Specifically, the BIA
noted that it “fail[ed] to find any of the alleged differences cited by [Vazquez]
on appeal” after conducting a de novo comparison of controlled substances
listed in Oklahoma’s Schedule II, Part B with the substances included in
Schedule II of the federal drug schedules. The BIA noted that even if
Oklahoma’s drug schedules included substances that were not included in the
federal drug schedules,
      there must be a realistic probability that the State would prosecute
      conduct under the statute that falls outside the generic definition
      of the removable offense to defeat a charge of removability under
      the categorical approach. In other words . . . we presume there is a
      categorical match between state and federal drug schedules unless
      the respondent shows that the state actually prosecutes cases
      involving substances not on the federal schedule.
Vazquez filed a timely petition for review.


                                       3
     Case: 16-60211   Document: 00514396146     Page: 4   Date Filed: 03/21/2018



                                 No. 16-60211
                              II. DISCUSSION
      The removal proceedings and the direct appeal to the BIA were
conducted within this Circuit. See 8 U.S.C. § 1252(b)(2). Judicial review of a
final order by the BIA against a criminal alien is generally precluded by the
Immigration & Nationality Act, 8 U.S.C. § 1252(a)(2)(C). See Enriquez–
Gutierrez v. Holder, 612 F.3d 400, 406 (5th Cir. 2010). However, this Court
retains jurisdiction to review constitutional claims and questions of law. 8
U.S.C. § 1252(a)(2)(D). The BIA’s determination that a violation of a state or
federal criminal law relates to a controlled substance violation presents a pure
question of law. See id. § 1227(a)(2)(B)(i); Danso v. Gonzales, 489 F.3d 709,
712–13 (5th Cir. 2007) (holding that this Court had jurisdiction to review
whether a conviction qualified as a controlled substance violation pursuant to
8 U.S.C. § 1182(a)(2)(A)(i)(II)); Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir.
2002) (noting that determining a crime’s elements is beyond the scope of the
BIA’s power and expertise).
A.    Effective Exhaustion of Vazquez’s Claim
      As a preliminary issue, this Court must determine whether Vazquez
properly exhausted his claim before the BIA. We have jurisdiction to determine
our own jurisdiction. Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009).
Judicial review of a final removal order is only available if “the alien has
exhausted all administrative remedies available to the alien as of right.”
8 U.S.C. § 1252(d)(1). The exhaustion requirement is statutorily mandated; “an
alien’s failure to exhaust his administrative remedies serves as a jurisdictional
bar to our consideration of the issue.” Wang v. Ashcroft, 260 F.3d 448, 452 (5th
Cir. 2001). “An alien fails to exhaust his administrative remedies with respect
to an issue when the issue is not raised in the first instance before the [BIA].”
Id. at 452–53. “This exhaustion requirement applies to all issues for which an
administrative remedy is available to a petitioner ‘as of right.’” Omari, 562
                                       4
    Case: 16-60211     Document: 00514396146      Page: 5   Date Filed: 03/21/2018



                                  No. 16-60211
F.3d at 318 (quoting Arce–Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir.
2007)). “A remedy is available as of right if (1) the petitioner could have argued
the claim before the BIA, and (2) the BIA has adequate mechanisms to address
and remedy such a claim.” Id. at 318–19. The alien “must fairly present an
issue to the BIA to satisfy § 1252(d)’s exhaustion requirement.” Id. at 321
(internal quotation marks omitted). An issue is fairly presented when the
petitioner made “some concrete statement before the BIA to which they could
reasonably tie their claims before this court.” Id. at 322. If an alien submits a
brief, “that brief becomes the operative document through which any issues
that a petitioner wishes to have considered must be raised.” Claudio v. Holder,
601 F.3d 316, 319 (5th Cir. 2010).
      In order to satisfy the exhaustion requirement, Fifth Circuit cases “have
continually stated that a petitioner must ‘raise,’ ‘present,’ or ‘mention’ an issue
to the BIA to satisfy exhaustion.” Omari, 562 F.3d at 321. This requires some
affirmative action by a party, but it is by no means a requirement that the
arguments be identical. See id. For example, in Carranza–de Salinas v.
Gonzalez, 477 F.3d 200 (5th Cir. 2007), the petitioner exhausted his argument
by presenting it in a “less developed form.” Id. at 206–07. In Dale v. Holder, a
petitioner properly exhausted an argument regarding divisibility of a statute
even though the argument before the BIA was not identical to the argument
presented on appeal. 610 F.3d 294, 299–301 (5th Cir. 2010). This Court held
that subsequent variations in analysis or changes in the scope of an argument
do not render an issue unexhausted. Id. Similarly, in Burke v. Mukasey, a pro
se petitioner’s general argument to the BIA embraced a slightly more specific
question, and thus his claim on appeal was exhausted. 509 F.3d 695, 696 (5th
Cir. 2007). The key requirement in these cases is that a petitioner must have
presented an issue in some concrete way in order to put the BIA on notice of
his claim. See Omari, 562 F.3d at 322 (framing the exhaustion requirement in
                                        5
     Case: 16-60211       Document: 00514396146         Page: 6    Date Filed: 03/21/2018



                                      No. 16-60211
broad terms of identifying issues). In this case, Vazquez exhausted his
argument that the Oklahoma statute is broader than its federal counterpart.
       Vazquez asserts that he properly raised all issues before the BIA.
Specifically, he exhausted the issue of whether or not the Oklahoma controlled
substance schedules included more substances than the federal schedules such
that they were not a generic match. Thus, a controlled substance offense under
Oklahoma law could not categorically be an offense related to a controlled
substance as required by 8 U.S.C. § 1227(a)(2)(B)(i). Not only did Vazquez
provide a concrete statement in his brief to which he could tie his claim on
appeal, but Vazquez explicitly argued the exact claim he makes before this
Court: “[a] review of the Oklahoma statute of conviction . . . reveals that the
Oklahoma schedules contain substances that are not contained in any of the
five federal schedules.” In support of his claim, Vazquez argued that his
conviction was not categorically related to a federally controlled substance
because Oklahoma’s drug schedules, specifically subsection B of Schedule II,
included 20 substances not included in the federal drug schedules. 1 Because
Vazquez argued that Oklahoma’s drug schedules included substances that
were not included in any of the federal drug schedules, we conclude that he
exhausted the issue and we therefore have jurisdiction to hear his claim.
       On appeal, Vazquez relies on three other substances that he claims are
not included in any federal schedule: Salvia Divinorum, Salvinorin A, and




       1 Although Vazquez pointed to these substances to show a difference between the
Oklahoma and federal drug schedules, 19 of the substances he identified were in fact included
in the federal drug schedules. And while methylphenidate was not included in the federal
drug schedules, see 21 C.F.R. § 1308.12 (2013), it was not added to Oklahoma’s drug schedules
until November 1, 2014, see 2014 Okla. Sess. Law Serv. Ch. 154, § 3, after Vazquez’s
conviction. The BIA’s determination that the differences cited by Vazquez were not present
was therefore not erroneous.
                                             6
      Case: 16-60211    Document: 00514396146        Page: 7     Date Filed: 03/21/2018



                                    No. 16-60211
Cyclohexamine. 2 Salvia Divinorum and Salvinorin A are not federally
controlled substances. Compare Okla. Stats. Ann. tit. 63, §§ 2-204, 2-206, with
21 C.F.R. §§ 1308.11–15; see also Drug Enforcement Administration, Office of
Diversion Control, Drug & Chemical Evaluation Section, Salvia Divinorum
and               Salvinorin                   A               (Oct.             2013),
http://www.deadiversion.usdoj.gov/drug_chem_info/salvia_d.pdf.               Although
Vazquez did not reference these specific substances in his brief to the BIA, we
find that he exhausted his overbreadth argument. While Vazquez may have
cited different examples, the issue he identified was that the Oklahoma
schedules were not a categorical match to federal schedules. Vazquez explicitly
told the BIA as much in his brief. Because Vazquez’s criminal penalty applies
to any Schedule I or II substance, it is necessary to compare the Oklahoma and
federal Schedules I and II to determine the acts criminalized under the
categorical approach. Vazquez’s broader argument was thus sufficient to fairly
present the issue before the BIA. See Omari, 562 F.3d at 322 (recognizing that
the exhaustion requirement was met where the “petitioners made some
concrete statement before the BIA to which they could reasonably tie their
claims”). His argument thus “embraces” the more narrow issue of comparing
Oklahoma’s controlled substance schedules. In any event, where the BIA
chooses to address an issue on its merits—here whether the Oklahoma statute
was a categorical match to the federal analog—the issue is considered
exhausted. See Lopez–Dubon v. Holder, 609 F.3d 642, 644 (5th Cir. 2010)
(citing Sidabutar v. Gonzalez, 503 F.3d 1116, 1122 (10th Cir. 2007)). Either
way, we may hear Vazquez’s claim that he presents on appeal.




       2Contrary to Vazquez’s contention, Cyclohexamine was included in the federal drug
schedules. See 21 C.F.R. § 1308.11(d)(32) (2013).
                                           7
     Case: 16-60211   Document: 00514396146     Page: 8    Date Filed: 03/21/2018



                                 No. 16-60211
      This is not the case where efficient adjudication is at issue, and Vazquez
is not asking us to require the BIA to “divine from the record all potentially-
disputed issues.” Omari, 562 F.3d at 322. By making the argument that (1) the
Oklahoma statute of conviction was not a categorical match, and (2) the
Oklahoma schedules had at least one substance not on the federal schedules,
Vazquez fairly identified the issue, notified the BIA of the appropriate
standard, and the BIA addressed the merits of his claim. Thus, we may hear
the claim Vazquez now makes on appeal—both that the BIA erred in
employing the categorical approach and that the Oklahoma statute is not a
categorical match to the federal statute.
B.    The BIA Decision
      Vazquez challenges the BIA’s conclusion that he was eligible for removal
based on his Oklahoma conviction. 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. Danso, 489 F.3d at 712–13. Review of
BIA decisions is confined to the BIA’s analysis and reasoning; this Court “may
usually only affirm the BIA on the basis of its stated rationale.” Enriquez–
Gutierrez, 612 F.3d at 407; see also Rodriguez–Barajas v. Holder, 624 F.3d 678,
679 (5th Cir. 2010). This Court reviews the BIA’s decision and the decision of
the IJ to the extent that it influenced the BIA. Zhu v. Gonzales, 493 F.3d 588,
593–94 (5th Cir. 2007).
      Vazquez was convicted under Oklahoma Statute Annotated title 63, § 2-
402(A)(1) (2013), which at the time of his conviction provided:
      It shall be unlawful for any person knowingly or intentionally to
      possess a controlled dangerous substance unless such substance
      was obtained directly, or pursuant to a valid prescription or order
      from a practitioner, while acting in the course of his or her
      professional practice, or except as otherwise authorized by this act.



                                       8
     Case: 16-60211       Document: 00514396146         Page: 9    Date Filed: 03/21/2018



                                      No. 16-60211
The term “controlled dangerous substance” was defined as “a drug, substance
or immediate precursor in Schedules I through V of the Uniform Controlled
Dangerous Substances Act, Section 2-101 et seq. of this title.” Okla. Stat. Ann.
tit. 63, § 2-101(8) (2013). A person violating the controlled dangerous substance
law for any “Schedule I or II substance, except marihuana or a substance
included in subsection D of Section 2-206 of this title, is guilty of a felony
punishable by imprisonment for not less than two (2) years nor more than ten
(10) years and by a fine not exceeding Five Thousand Dollars ($5,000.00).” Id.
§ 2-402(B)(1). Oklahoma provides different penalties for Schedule III, IV, and
V controlled substances. See id. §§ 2-402(B)(2)–(4).
       An alien who, after admission to the United States, is convicted of
violating any state, federal, or foreign law “relating to a controlled substance
(as defined in section 802 of Title 21), other than a single offense involving
possession for one’s own use of 30 grams or less of marijuana, is deportable.”
8 U.S.C. § 1227(a)(2)(B)(i). “[T]o trigger removal under § 1227(a)(2)(B)(i), the
Government must connect an element of the alien’s conviction to a drug
‘defined in [21 U.S.C. § 802].’” Mellouli v. Lynch, 135 S. Ct. 1980, 1991 (2015).
Section 802 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). 3 Cocaine was classified as a Schedule II
controlled substance under both Oklahoma and federal law. See 21 C.F.R.
§ 1308.12(b)(4) (2013); Okla. Stat. Ann. tit. 63, § 2-206(A)(4) (2013).
       But Vazquez is not eligible for removal merely because cocaine is a
controlled substance under both federal and Oklahoma law. In order to
determine whether a state law conviction renders an alien eligible for removal



       3The initial schedules were codified in 21 U.S.C. § 812, but the updated schedules are
now codified in 21 C.F.R. § 1308, et seq.
                                             9
    Case: 16-60211    Document: 00514396146       Page: 10   Date Filed: 03/21/2018



                                  No. 16-60211
under 8 U.S.C. § 1227(a)(2)(B)(i), courts apply the “categorical approach.” See
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). 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. See id. 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
(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, 135 S. Ct. at 1986. 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 (internal
quotation marks, brackets, and citation omitted). This “requires more than the
application of legal imagination to a state statute’s language. It requires a
realistic probability, not a theoretical possibility, that the State would apply
its statute to conduct that falls outside the generic definition of a crime.”
Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007). To show a realistic
probability, the alien must demonstrate “that the State actually prosecutes”
the non-generic offense. Moncrieffe, 569 U.S. at 206.
      1. Categorical Match Between the Oklahoma and Federal
         Schedules
      Vazquez argues that BIA’s conclusion that the Oklahoma statute
categorically matched the federal statute was erroneous because the BIA
improperly applied the categorical approach. Where a state statute
criminalizes offenses that fall outside of the federal generic definition, there is
not a categorical match. See Moncrieffe, 569 U.S. at 190, 206. In that case, the

                                        10
   Case: 16-60211     Document: 00514396146     Page: 11   Date Filed: 03/21/2018



                                 No. 16-60211
noncitizen would not be eligible for mandatory removal. Id. at 204. If there is
a categorical match between the predicate offense and generic definition, the
inquiry ends there. Esparza–Rodriguez v. Holder, 699 F.3d 821, 825 (5th Cir.
2012). Where there is a categorical match, a conviction under the state statute
“triggers removal under the immigration statute.” Mellouli, 135 S. Ct. at 1987.
      The BIA failed to find any differences between “the controlled substances
listed in Oklahoma’s Schedule II, Part B” and “the controlled substances listed
in Schedule II of the Federal controlled substances,” and it concluded that
Oklahoma’s statute categorically matched its federal counterpart. The BIA
erred in this conclusion. The breadth of the Oklahoma schedules facially
extends beyond those substances that are controlled under federal law.
Specifically, the Oklahoma schedules contain at least two substances (Salvia
Divinorum and Salvinorin A) that are not included in any federal schedule.
Compare Okla. Stats. Ann. tit. 63, §§ 2-204, 2-206, with 21 C.F.R. §§ 1308.11–
15. As a result, Okla. Stat. Ann. tit. 63, § 2-402(A)(1) (2013) applied more
broadly than the federal offense under 8 U.S.C. § 1227. In fact, both parties
agree that the Oklahoma statute of conviction here is broader than its federal
analog.
      The Government argues that while there are differences between the
Oklahoma and federal schedules, this Court may still find a categorical match
under the modified categorical approach. Thus, according to the Government,
this Court may affirm the BIA’s decision because the Oklahoma statute is
divisible. Where a statute of conviction is divisible, by listing elements in the
alternative, a court may apply the modified categorical approach. Mathis, 136
S. Ct. at 2249; Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). The
modified categorical approach applies to “state statutes that contain several
different crimes, each described separately.” Moncrieffe, 569 U.S. at 191. And
the modified categorical approach “permits a court to determine which
                                       11
   Case: 16-60211     Document: 00514396146     Page: 12   Date Filed: 03/21/2018



                                 No. 16-60211
statutory phrase was the basis for conviction.” Descamps, 133 S. Ct. at 2285
(quoting Johnson v. United States, 559 U.S. 133, 144 (2010)). In these cases, “a
court may determine which particular offense the noncitizen was convicted of
by examining the charging document and jury instructions, or in the case of a
guilty plea, the plea agreement, plea colloquy, or some comparable judicial
record of the factual basis for the plea.” Moncrieffe, 569 U.S. at 191 (citation
and internal quotation marks omitted). Specifically, the Government argues
that the statute is divisible because the specific controlled substance is an
element of the Oklahoma statute of conviction.
      Employing the modified approach in this case, however, would extend
beyond the proper scope of this Court’s review. Review of BIA decisions is
confined to the BIA’s analysis and reasoning; this Court may “usually only
affirm the BIA on the basis of its stated rationale for ordering an alien removed
from the United States.” Enriquez–Gutierrez, 612 F.3d at 407 (citing Kwon v.
INS, 646 F.2d 909, 916 (5th Cir. 1981)); see also Esquivel v. Lynch, 803 F.3d
699, 701 n.1 (5th Cir. 2015). Affirmance would be appropriate only in cases of
harmless error, “where there is no realistic possibility that, absent the errors,
the . . . BIA would have reached a different conclusion.” Enriquez–Gutierrez,
612 F.3d at 407 (internal quotation marks and citation omitted). But Vazquez
contested the issue of whether the modified approach was proper in his case.
He argued on appeal to the BIA that “his Oklahoma statute of conviction is not
divisible but overbroad, such that the modified categorical approach may not
be applied to his record of conviction to identify the controlled substance
involved here as Cocaine.” But the BIA did not decide this issue, nor did it
appear to apply the modified categorical approach. Although the Government
thoroughly briefs this issue, this panel may not affirm on this basis because it
was not the BIA’s stated rationale. We thus decline to assess whether the


                                       12
   Case: 16-60211     Document: 00514396146      Page: 13   Date Filed: 03/21/2018



                                  No. 16-60211
Oklahoma statute is divisible, or whether the modified categorical approach
applies.
      In limiting its review to Schedule II, rather than reviewing Schedules I
and II under Oklahoma and federal law, the BIA erred in its application of the
categorical approach. The categorical approach required comparing the
Oklahoma statute to its federal analog. In this case, because the Oklahoma
statute criminalized controlled substances on Schedule I and II, the BIA should
have compared both Schedules I and II. We find that the Oklahoma Statute
Annotated title 63, § 2-402(A)(1) (2013) is facially overbroad under the
categorical approach: Oklahoma schedules contain at least two substances
(Salvia Divinorum and Salvinorin A) that are not included in any federal
schedule. However, our inquiry does not end there.
      2. The Realistic Probability Test
      The controversy in this case centers on the applicability of the “realistic
probability test” developed in Gonzales v. Duenas–Alvarez, 549 U.S. 183 (2007).
The “realistic probability test” qualifies the categorical approach. Moncrieffe,
133 S. Ct. at 1684–85. In order to show that the state statute is broader than
the generic definition of a crime, there must be “a realistic probability, not a
theoretical possibility, that the State would apply its statute to conduct that
falls outside the generic definition.” Duenas–Alvarez, 549 U.S. at 193. The alien
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 for which he argues.” Id.
      Although the BIA concluded that the Oklahoma conviction was facially
a categorical match, the BIA further reasoned, relying on the BIA case Matter
of Ferreira, 26 I. & N. Dec. 415 (BIA 2014), that a categorical match was
presumed unless Oklahoma “actually prosecutes cases involving substances
not on the federal schedule.” In Matter of Ferreira, an alien pleaded guilty to
the sale of unspecified illegal narcotics in violation of Connecticut law, and the
                                       13
    Case: 16-60211    Document: 00514396146      Page: 14    Date Filed: 03/21/2018



                                  No. 16-60211
DHS charged him with removability. 26 I. & N. Dec. at 415–16. The alien
argued that he was not eligible for removal because the Connecticut drug
schedules included two opiate derivatives not included in any federal schedule.
Id. at 416–17. The BIA noted that because the federal drug schedules “change
frequently, they often do not match State lists of controlled substances, which
are found in statutes and regulations that are amended with varying
frequency.” Id. at 418. Thus, “the application of the realistic probability test is
necessary to prevent the categorical approach from eliminating the
immigration consequences for many State drug offenses, including trafficking
crimes.” Id. at 421. The BIA held that:
      [W]here a State statute on its face covers a controlled substance
      not included in the Federal controlled substances schedules, there
      must be a realistic probability that the State would prosecute
      conduct under the statute that falls outside the generic definition
      of the removable offense to defeat a charge of removability under
      the categorical approach.
Id. at 415.
      Vazquez argues that applying the realistic probability test in this
manner ignores “the very language of [the] statute” and places an unfair
burden on aliens by requiring that they “provide additional corroboration to
show that a state actually enforces [its] black-letter law.” The Government
contends that the realistic probability test requires Vazquez to demonstrate
that Oklahoma actually prosecutes individuals for non-federally controlled
substances, which Vazquez failed to do.
      The application of the realistic probability test is largely unsettled.
Neither the Supreme Court nor this Circuit have extended the realistic
probability test to immigration cases involving controlled substances. See, e.g.,
Mellouli, 135 S. Ct. at 1988 (finding that a drug-paraphernalia conviction did
not render an alien deportable because his conviction was not limited to
substances controlled under federal law). Other circuits have held that a
                                   14
    Case: 16-60211        Document: 00514396146          Page: 15     Date Filed: 03/21/2018



                                       No. 16-60211
statute’s plain meaning is dispositive; where a state statute is facially
overbroad compared to a corresponding federal statute, there is a realistic
probability that the state will apply its statute to conduct that falls outside the
generic definition. 4
       However, this Court sitting en banc recently determined that “without
supporting state case law, interpreting a state statute’s text alone is simply
not enough to establish the necessary ‘realistic probability.’” Castillo-Rivera,
853 F.3d at 223 (citing Duenas–Alvarez, 549 U.S. at 193). In Castillo-Rivera,
the court considered and rejected the argument that a Texas statute was not
an aggravated felony under the Sentencing Guidelines because Texas’s offense
was broader than its federal counterpart. Id. at 224–25. The rule adopted in
Castillo-Rivera is clear in its breadth: “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.” Id. at 224
n.4. Castillo-Rivera thus extends to the circumstances of this case, and we are
bound by that decision.
       Castillo-Rivera leaves just one path for Vazquez, which his brief fails
entirely to pursue on appeal. Having never suggested that the realistic
probability test is satisfied here, Vazquez has waived the only viable argument.
                                   III. CONCLUSION
       For the foregoing reasons, the petition for review is DENIED.




       4  See, e.g., Swaby v. Yates, 847 F.3d 62, 65–66 (1st Cir. 2017) (rejecting the realistic
probability test for a controlled substance violation in the immigration context); Vassell v.
U.S. Att’y Gen., 839 F.3d 1352, 1362 (11th Cir. 2016); Singh v. U.S. Att’y Gen., 839 F.3d 273,
286 (3d Cir. 2016); Ramos v. U.S. Att’y Gen., 709 F.3d 1066, 1071–72 (11th Cir. 2013); United
States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007); Mendieta–Robles v. Gonzales, 226 F. App’x
564, 572 (6th Cir. 2007). Under this approach, the fact that Oklahoma plainly criminalizes a
substance suggests a realistic probability of prosecution that does not exist at the federal
level.
                                              15
