Case: 19-60519 Document: 00515941651 Page: 1 Date Filed: 07/16/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 16, 2021 No. 19-60519 Lyle W. Cayce Clerk Arturo Ochoa-Salgado, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals No. A 028 296 392 Before Smith and Ho, Circuit Judges, and Barker, District Judge.* Jerry E. Smith, Circuit Judge: Ochoa-Salgado is a Mexican citizen who was convicted in Texas of delivering cocaine. Because an Immigration Judge (“I.J.”) found him remov- able, he asks for cancellation of removal. But, to qualify for that, Ochoa- Salgado must not have been convicted of an offense that falls within the Con- trolled Substances Act (“CSA”). Because his Texas conviction is included in the CSA, we deny the petition for review. * U.S. District Judge for the Eastern District of Texas, sitting by designation. Case: 19-60519 Document: 00515941651 Page: 2 Date Filed: 07/16/2021 No. 19-60519 I. Ochoa-Salgado is a Mexican citizen whom the United States admitted as a lawful permanent resident alien. In 2008, he was convicted in Texas of manufacture or delivery of cocaine in violation of Texas Health and Safety Code § 481.112. In 2013, the Department of Homeland Security initiated removal proceedings, which occurred in two parts: (A) proceedings that occurred before Mathis v. United States, 136 S. Ct. 2243 (2016), and (B) post- Mathis proceedings. A. The government initially claimed that Ochoa-Salgado was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) (“(A)(iii)”), which allows removal of aliens “convicted of an aggravated felony.” The term “aggravated felony” includes “drug-trafficking crimes.” Vasquez-Martinez v. Holder, 564 F.3d 712, 719 n.11 (5th Cir. 2009) (cleaned up). “[D]rug trafficking crimes,” in turn, constitute “any felony punishable under the [CSA].” Id. (cleaned up). Thus, to determine whether a state drug offense constitutes an aggravated felony, the I.J. would need to “(1) identify the elements that make up [§ 481.112] and then (2) determine whether those elements” fall within the CSA. Alejos-Perez v. Garland, 991 F.3d 642, 647 (5th Cir. 2021) (cleaned up). The government thus faced a hurdle in showing that § 481.112 falls within the CSA: “Delivery,” under § 481.112, can occur through (1) actual transfer, (2) constructive transfer, or (3) an offer to sell. 1 But we had said that § 481.112’s offer-to-sell theory “does not fall within [a sentencing guide- line’s] definition of [a] ‘drug trafficking offense.’” See Vasquez-Martinez, 1 See § 481.002(8) (defining “[d]eliver” as “to transfer, actually or construc- tively,” which “includes offering to sell”). 2 Case: 19-60519 Document: 00515941651 Page: 3 Date Filed: 07/16/2021 No. 19-60519 564 F.3d at 718 (citation omitted). Apparently on the assumption that we would interpret the CSA congruently, the government became concerned that, on the record before it, it could not prove that Ochoa-Salgado had not been convicted under the offer-to-sell theory. Thus, the government changed its ground for removal, now claiming that Ochoa-Salgado was removable because his § 481.112 …
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