VASSELL v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-03-08No. No. 17-71115

Summary · law.co

Holding. The petition for review is denied, affirming the BIA's dismissal of Vassell's appeal and its determinations that her drug distribution conviction rendered her ineligible for asylum, withholding of removal, and Convention Against Torture relief.

Marsha Vassell, a Jamaican citizen, sought review of the Board of Immigration Appeals' dismissal of her appeal challenging an immigration judge's denial of asylum, withholding of removal, and relief under the Convention Against Torture. Vassell had pleaded guilty to drug distribution in Maryland in 2004 and received a suspended sentence with one year of supervised probation. The BIA determined that this conviction constituted an aggravated drug felony, rendering her ineligible for the requested forms of relief. The court found that a probationary sentence alone, even without incarceration, satisfies the definition of a conviction, and that Vassell's conduct matched the federal definition of drug trafficking as a felony offense.

Regarding withholding of removal, the court lacked jurisdiction to review the factual determinations but confirmed that because Vassell was convicted of a particularly serious crime, she was statutorily ineligible for this relief. Finally, substantial evidence supported the BIA's denial of Convention Against Torture relief because Vassell failed to demonstrate it was more likely than not that she would be tortured if returned to Jamaica, particularly given her multiple travels to and from the country during her time in the United States.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a suspended sentence with supervised probation constitutes a conviction under immigration law
Whether drug distribution under Maryland law qualifies as an aggravated drug trafficking felony under federal immigration standards
Whether ineligibility based on a particularly serious crime conviction precludes withholding of removal
Whether Vassell met her burden to prove a likelihood of torture upon return to Jamaica

Procedural posture

Vassell petitioned for review of the BIA's decision affirming the immigration judge's denial of her applications for asylum, withholding of removal, and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Petitioner Marsha Natalie Vassell (Vassell), a native and citizen of Jamaica, petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing her appeal of the immigration judges denial of asylum, withholding of removal, and relief pursuant to the Convention Against Torture (CAT).

The BIA correctly held that Vassells guilty plea and conviction in 2004 for distribution of a controlled substance in violation of Md. Crim. Law § 5-602 was an aggravated drug felony rendering Vassell ineligible for asylum. See Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020), as amendded (explaining that a noncitizen “removable on aggravated felony grounds [is] ineligible for asylum and for cancellation of removal”) (citations omitted). Although Vassell contends that her suspended sentence and one year of supervised probation did not qualify as a conviction,“[a] sentence of probation, even with no incarceration, satisfies the requirements of [8 U.S.C.] § 1101(a)(48)(A) so long as the judge has ordered some form of punishment, penalty, or restraint on the [noncitizens] liberty to be imposed.” Reyes v. Lynch, 834 F.3d 1104, 1108 (9th Cir. 2016) (internal quotation marks omitted).

The BIA properly concluded that Vassells distribution of a controlled substance conviction qualified as an aggravated felony drug trafficking offense as defined by 8 U.S.C. § 1101(a)(43)(B) because “it [was] a drug trafficking offense that may be punished as a felony under federal law.” Md. Crim. Law § 5-602 (2004) provided that “a person may not: (1) manufacture, distribute, or dispense a controlled dangerous substance; or (2) possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to manufacture, distribute, or dispense a controlled dangerous substance.” Federal law similarly made it “unlawful for any person knowingly or intentionally – (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.” 21 U.S.C. § 841(a)(1) (2004).

“[W]e lack jurisdiction over the BIAs determination that [Vassell] committed a particularly serious crime, retaining jurisdiction only to determine whether the BIA applied the proper legal standard.” Dominguez, 975 F.3d at 734 (citation omitted). Although Vassell disputes the factual findings underlying the particularly serious crime determination, she fails to demonstrate that the BIA or immigration judge (IJ) applied an erroneous legal standard. As a result, Vassell was ineligible for withholding of removal. See id. at 740 (explaining that “a noncitizen convicted of a particularly serious crime is ineligible for withholding of removal”) (citation omitted).

Substantial evidence supports the BIAs denial of relief under the CAT because Vassell failed to demonstrate that it was more likely than not that she would be tortured by her husband or by drug traffickers, with the governments acquiescence, if she were returned to Jamaica. See Garcia v. Wilkinson, No. 19-72803, 988 F.3d 1136, 1147-48 (9th Cir. Feb. 18, 2021) (explaining that “[t]o gain CAT relief, [Vassell] had the burden to prove that it is more likely than not that (1) she, in particular, would be (2) subject to harm amounting to torture (3) by or with the acquiescence of a public official, if removed”) (citation omitted). Vassell also does not effectively rebut the BIAs adoption of the IJs finding that Vassell “did not establish that she face[d] a probability of torture by drug traffickers in Jamaica given that she traveled to and from Jamaica many times during her time in the United States.” See id. (articulating that “[t]he agencys fact finding is conclusive unless a reasonable adjudicator would be compelled to conclude to the contrary”) (citations omitted).

PETITION DENIED.

FOOTNOTES

. Relying on Md. Crim. Law § 5-101, Vassell asserts that her conviction in violation of Md. Crim. Law § 5-602 was not categorically an aggravated felony because the Maryland statute permits the defendant to be convicted irrespective of whether or not there was any remuneration for the controlled substance and regardless of the quantity. We lack jurisdiction over this unexhausted issue because Vassells brief before the BIA “was not sufficient to put the BIA on notice that [she] was challenging the categorical match” between the Maryland statute and the federal definition of an aggravated drug trafficking offense on this basis. Alvarado v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014) (citation and internal quotation marks omitted).