United States Court of Appeals For the First Circuit No. 20-1711 JANITO DECARVALHO, Petitioner, v. MERRICK B. GARLAND,* Attorney General, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Lynch, Lipez, and Kayatta, Circuit Judges. Trina Realmuto, with whom Tiffany Lieu, National Immigration Litigation Alliance, Jennifer Klein, and Committee for Public Counsel Services were on brief, for petitioner. Marie V. Robinson, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, and Andrew N. O'Malley, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent. November 17, 2021 * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr. KAYATTA, Circuit Judge. The Board of Immigration Appeals (BIA) held that Janito DeCarvalho's conviction for possession of oxycodone with intent to distribute in violation of Mass. Gen. Laws ch. 94C, § 32A(a), constitutes a "particularly serious crime" that makes him ineligible for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). The BIA also denied DeCarvalho's application for deferral of removal under the Convention Against Torture (CAT). DeCarvalho petitions for review of the BIA's decisions, principally arguing that the Attorney General's decision in Matter of Y-L- unlawfully presumes that all aggravated felonies involving trafficking in controlled substances are particularly serious crimes. See 23 I. & N. Dec. 270, 274–75 (U.S. Att'y Gen. 2002). We deny his petition for review insofar as he seeks CAT relief. We grant the petition in part, however, because the immigration judge (IJ) informed DeCarvalho, who was proceeding pro se, that he was eligible for potential relief only under the CAT. In so doing, the IJ treated DeCarvalho's conviction for drug trafficking as if it were a per se bar to withholding of removal, a position that the government now disavows on appeal. We remand to the agency with instructions to give DeCarvalho a new hearing to determine whether he is entitled to withholding of removal. - 2 - I. DeCarvalho is a native and citizen of Cape Verde. Between 2001 and 2003, DeCarvalho served as an officer in Cape Verde's national police force. In 2004, DeCarvalho left Cape Verde and came to the United States on a tourist visa. After his visa expired, DeCarvalho remained in the United States and was granted conditional permanent resident status in 2012. In 2015, DeCarvalho was convicted in state court of several offenses, including possession with intent to distribute oxycodone in violation of Mass. Gen. Laws ch. 94C, § 32A(a). He was sentenced to three and a half years' imprisonment. Citing his oxycodone conviction as a basis for removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), the Department of Homeland Security initiated removal proceedings against DeCarvalho approximately two years after he completed his prison term. DeCarvalho appeared pro se before an IJ. The IJ informed DeCarvalho that "because of [his] drug trafficking conviction, [he was] only eligible to apply for . . . …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals