Marsha Vassell v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2021
• Docket: 17-71115
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 8 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARSHA NATALIE VASSELL, AKA No. 17-71115 Charmaine Natalie Graham Vassell, AKA Marsha Richards, Agency No. A087-789-670

Petitioner, MEMORANDUM* v.

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 4, 2021** Seattle, Washington

Before: RAWLINSON and BYBEE, Circuit Judges, and ENGLAND,*** Senior District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Morrison C. England, Jr., Senior United States District Judge for the Eastern District of California, sitting by designation. 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 judge’s denial of asylum, withholding of

removal, and relief pursuant to the Convention Against Torture (CAT).

The BIA correctly held that Vassell’s 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 Vasell 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 [noncitizen’s] liberty to be

imposed.” Reyes v. Lynch, 834 F.3d 1104, 1108 (9th Cir. 2016) (internal quotation

marks omitted).

The BIA properly concluded that Vassell’s 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

2 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).1

“[W]e lack jurisdiction over the BIA’s 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

1 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 Vassell’s 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). 3 (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 BIA’s 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 government’s

acquiescence, if she were returned to Jamaica. See Garcia v. Wilkinson, No.

19-72803, – F.3d –, 2021 WL 628281, at *8 (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 BIA’s adoption of the IJ’s

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 agency’s fact

finding is conclusive unless a reasonable adjudicator would be compelled to

4 conclude to the contrary”) (citations omitted).

PETITION DENIED.