Ivan Rodriguez Vazquez v. Jefferson Sessions, III

Case: 16-60211 Document: 00514332667 Page: 1 Date Filed: 02/01/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-60211 Fifth Circuit FILED February 1, 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 Before JONES, SMITH, and PRADO, Circuit Judges. EDWARD C. PRADO, Circuit Judge: 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 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- Case: 16-60211 Document: 00514332667 Page: 2 Date Filed: 02/01/2018 No. 16-60211 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 (“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 2 Case: 16-60211 ...

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