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statuteappealdeportationrespondent
statuteappealdeportation

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Vazquez v. Sessions

Facts

Ivan Bernabe Rodriguez Vazquez, a lawful permanent resident from Mexico, was convicted in Oklahoma for possession of cocaine, a controlled and dangerous substance, in 2013. Following his conviction, the U.S. Department of Homeland Security issued a Notice to Appear, charging him with removal under the Immigration and Nationality Act due to his controlled substance violation. Vazquez contested the BIA's determination that his conviction was a categorical match to federal law, arguing that the Oklahoma statute was broader and did not equate to a federal offense.

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).

Issue

Did the BIA err in determining that Vazquez's conviction for possession of a controlled substance under Oklahoma law was a categorical match to the corresponding federal offense, thereby making him eligible for deportation?

Did the BIA err in determining that Vazquez's conviction for possession of a controlled substance under Oklahoma law was a categorical match to the corresponding federal offense, thereby making him eligible for deportation?

Rule

The realistic probability test applies whenever the categorical approach is employed, meaning that a state statute is presumed to match a federal statute unless the respondent can show that the state 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.

Analysis

The court applied the realistic probability test to determine whether the Oklahoma statute was broader than the federal law. It noted that while the BIA concluded there was a categorical match, Vazquez did not adequately address this issue in his appeal, thus waiving his argument. The court emphasized that the burden was on Vazquez to demonstrate that Oklahoma prosecutes cases involving substances not listed in the federal schedules, which he failed to do.

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.

Conclusion

The Fifth Circuit denied Vazquez's petition for review, concluding that he waived his argument regarding the categorical match by not addressing it in his appeal.

Accordingly, we DENY the petition for review.

Who won?

The government prevailed in the case because Vazquez failed to present a sufficient argument to challenge the BIA's decision regarding his deportation eligibility.

The government prevailed in the case because Vazquez failed to present a sufficient argument to challenge the BIA's decision regarding his deportation eligibility.

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