United States Court of Appeals 

For the First Circuit 

No. 16-1821 

ORAL AGUSTAS SWABY, 

Petitioner, 

v. 

SALLY Q. YATES,

Acting Attorney General of the United States, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Barron, Stahl, Lipez, 

Circuit Judges. 

Patrick N. Long, on brief for petitioner. 

Jessica E. Burns, with whom Rachel L. Browning, Trial 

Attorney, Office of Immigration Litigation, U.S. Department of 

Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney 

General, Civil Division, and Keith McManus, Assistant Director, 

Office of Immigration Litigation, were on brief, for respondent. 

January 30, 2017 

  Pursuant to Fed. R. App. 43(c)(2), Sally Q. Yates has been 

substituted for Loretta E. Lynch as Attorney General.
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BARRON, Circuit Judge. Oral Swaby, a citizen of Jamaica, 

petitions for review of a decision of the Board of Immigration 

Appeals ("BIA") affirming his order of removal and denying his 

request for cancellation of removal. We dismiss in part and deny 

in part the petition. 

I. 

Swaby lawfully entered the United States on a tourist 

visa in May 1996, and he adjusted to lawful permanent resident 

status on May 14, 2010. On September 4, 2013, Swaby pled nolo 

contendere in Rhode Island Superior Court to three counts of 

manufacturing, delivering, or possessing with intent to distribute 

a controlled substance -- to wit, marijuana -- in violation of 

Rhode Island General Laws Section 21-28-4.01(a)(4)(i). In 

consequence, on February 25, 2015, the Department of Homeland 

Security ("DHS") served Swaby with a Notice to Appear ("NTA"). 

The NTA charged Swaby with removability under 8 U.S.C. 

§ 1227(a)(2)(B)(i).

That provision of federal immigration law authorizes the 

removal of an alien convicted of a violation of any federal or 

state law "relating to a controlled substance (as defined in 

section 802 of Title 21)." Section 802 of Title 21 limits the 

term "controlled substance" to a "drug or other substance" included 

in one of the five federal drug schedules. 21 U.S.C § 802(6). 
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Swaby initially chose to appear pro se before the 

Immigration Judge ("IJ"), whereupon Swaby admitted the allegations 

contained in the NTA, accepted an order of removal, and waived his 

right to appeal the IJ's decision. But, on July 29, 2015, with 

the assistance of counsel, Swaby filed a motion to stay his removal 

and to reopen and terminate removal proceedings. He contended 

that, pursuant to Mellouli v. Lynch, 135 S. Ct. 1980 (2015), which 

had been decided in January of that year, his Rhode Island 

convictions did not qualify as removable offenses under 8 U.S.C. 

§ 1227(a)(2)(B)(i). He also requested cancellation of removal 

based on a consideration of various equitable factors.

On August 26, 2015, the IJ determined that Swaby was 

removable under § 1227(a)(2)(B)(i), notwithstanding the Supreme 

Court's decision in Mellouli, and thus denied Swaby's motion to 

terminate proceedings. The IJ did, however, grant Swaby's motion 

to stay removal and reopen proceedings. Due to an oversight by 

DHS, Swaby was then removed to Jamaica in spite of the stay. After 

DHS located Swaby and returned him to the United States, the IJ 

denied Swaby's request for cancellation of removal. Swaby appealed 

both rulings to the Board of Immigration Appeals ("BIA"), which, 

on May 24, 2016, affirmed them. 

Swaby now petitions for review of the BIA's decision. 

We have jurisdiction to review the BIA's May 2016 decision to 

dismiss Swaby's appeal of the IJ's decision pursuant to 8 U.S.C. 
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§ 1252(a)(1) and § 1252(a)(2), which give the courts of appeals 

jurisdiction to review constitutional claims and questions of law 

raised upon a petition for review of a final order of removal 

against a noncitizen who is removable by reason of having committed 

a criminal offense covered in § 1227(a)(2)(B). 

II. 

As we have noted, the record shows that the "controlled 

substance" that Swaby was convicted of manufacturing, delivering, 

or possessing with intent to distribute was marijuana, which is 

listed on the federal controlled substances schedules. The BIA's 

conclusion that Swaby's state convictions qualified as convictions 

for predicate offenses under § 1227(a)(2)(B)(i) may thus seem to 

be a straightforward one. But, it is not. The reason is that, 

consistent with Mellouli, the BIA applied what is known as the 

"categorical approach" to determining whether a state conviction 

qualifies under § 1227(a)(2)(B)(i). See Mellouli, 135 S. Ct. at 

1986. And the application of the categorical approach to the facts 

of this case presents some complications. 

The complications have to do with the breadth of the 

Rhode Island drug schedules -- and thus with the breadth of the 

Rhode Island crime at issue. Specifically, the Rhode Island drug 

schedules included at the relevant time at least one drug -- 

thenylfentanyl -- not listed on the federal drug schedules. 

Compare R.I. Gen. Laws § 21-28-2.08(e)(13), with 21 C.F.R. 
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§ 1308.11-1308.15. As a result, Rhode Island General Laws Section 

21-28-4.01(a)(4)(i) applied more broadly than the federally 

defined predicate offense set forth in § 1227. 

The breadth of the Rhode Island offense potentially 

matters because Mellouli makes clear that the categorical approach 

"looks to the statutory definition of the offense of conviction, 

not to the particulars of the alien's behavior." 135 S. Ct. at 

1986. Accordingly, under § 1227, a "state conviction triggers 

removal only if, by definition, the [state] underlying crime falls 

within a category of removable offenses defined by federal law." 

Id. Thus, it would appear that, under the categorical approach, 

this state law offense did not fall within the federal predicate 

offense set forth in § 1227, given that the state law offense had 

a broader scope of application due to the broader sweep of the 

state drug schedules. 

Nevertheless, the BIA ruled that the breadth of the Rhode 

Island offense was of no moment under the categorical approach. 

The BIA did so based on its decision in Matter of Ferreira, 26 

I. & N. Dec. 415 (BIA 2014). There, the BIA ruled that, under 

Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007), a noncitizen must 

show that there is a "realistic probability" that the state 

actually would prosecute cases involving any substances listed on 

state drug schedules that are not listed on the federal schedules. 

Id. at 421-22. Absent that showing, the BIA held, the state 
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controlled substances offense should be treated as if it did fall 

within the federally defined crime under § 1227(a)(2)(B)(i), as 

the seemingly problematic sweep of the state crime would then be 

more theoretical than real. Id. at 419. 

Deploying this same logic, the BIA explained in this 

case that Swaby had failed to show that there was a realistic 

probability that Rhode Island would actually prosecute offenses 

under Rhode Island General Laws Section 21-28-4.01(a)(4)(i) for 

thenylfentanyl, the one drug listed on the state schedules but not 

the federal ones.1 The BIA thus concluded that, under Matter of 

Ferreira, Swaby's convictions were for a crime that fell within 

the federally defined offense, notwithstanding that the state 

crime did appear to apply more broadly than the federally defined 

offense. For that reason, the BIA concluded that Swaby's 

convictions qualified as removable offenses under the categorical 

approach. 

Swaby contends on appeal that Duenas-Alvarez does not 

support the BIA's conclusion. And we agree. Duenas-Alvarez made 

no reference to the state's enforcement practices. It discussed 

only how broadly the state criminal statute applied. In doing so, 

 1 We note, though, that Rhode Island has retained 

thenylfentanyl on Schedule I despite enacting other amendments to 

that drug schedule in 2012, 2013, and 2014. See 2012 R.I. Pub. 

Laws ch. 415, § 36; 2013 R.I. Pub. Laws ch. 404, § 1; 2014 R.I. 

Pub. Laws ch. 71, § 1. 
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Duenas-Alvarez does make clear that to find that a state statute 

proscribes a broader range of conduct than a federal crime 

"requires more than the application of legal imagination to a state 

statute's language. It requires a realistic probability, not a 

theoretical possibility, that the State would apply its statute to 

conduct that falls outside" the federal definition of the crime. 

Duenas-Alvarez, 549 U.S. at 193. But, that sensible caution 

against crediting speculative assertions regarding the potentially 

sweeping scope of ambiguous state law crimes has no relevance to 

a case like this. The state crime at issue clearly does apply 

more broadly than the federally defined offense. Nothing in 

Duenas-Alvarez, therefore, indicates that this state law crime may 

be treated as if it is narrower than it plainly is. Nor are we 

aware of any circuit court case, whether from this circuit or from 

any other, that supports the BIA's surprising view that, in 

applying the categorical approach, state law crimes should not be 

given their plain meaning.2 

 2 See United States v. Fish, 758 F.3d 1, 6 (1st Cir. 2014) 

(noting, outside the context of § 1227, but with reference to the 

categorical approach more generally, that "a state's definition of 

a crime is overbroad if its elements allow for a conviction without 

satisfying the elements Congress has provided to define the 

required predicate offense" (emphasis added)); see also United 

States v. Aparicio-Soria, 740 F.3d 152, 158 (4th Cir. 2014) (en 

banc) ("We do not need to hypothesize about whether there is a 

'realistic probability' that Maryland prosecutors will charge 

defendants engaged in [the broader conduct]; we know that they can 

because the state's highest court has said so." (emphasis added)); 

Ramos v. U.S. Att'y Gen., 709 F.3d 1066, 1071-72 (11th Cir. 2013) 
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Simply put, the plain terms of the Rhode Island drug 

schedules make clear that the Rhode Island offense covers at least 

one drug not on the federal schedules. That offense is simply too 

broad to qualify as a predicate offense under the categorical 

approach, whether or not there is a realistic probability that the 

state actually will prosecute offenses involving that particular 

drug. See Mellouli, 135 S. Ct. at 1986. 

III.

The government does make a fallback argument, in which 

it asks us to uphold the BIA's decision on a different ground. 

The government argues that, under what is known as the "modified 

categorical approach," Swaby's state law convictions do qualify as 

predicates for removal under § 1227(a)(2)(B)(i), even if they do 

not qualify under the categorical approach itself. 

 

(Duenas-Alvarez does not require showing that the state "would use 

the [state] statute to prosecute conduct falling outside the 

generic definition . . . when the statutory language itself, rather 

than 'the application of legal imagination' to that language, 

creates the 'realistic probability' that a state would apply the 

statute to conduct beyond the generic definition"); Jean-Louis v. 

Att'y Gen., 582 F.3d 462, 481 (3d Cir. 2009) (finding the 

"realistic probability" test inapplicable where the statute's 

"elements . . . are clear, and the ability of the government to 

prosecute a defendant under [the statute] is not disputed"); United 

States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc) 

("Where, as here, a state statute explicitly defines a crime more 

broadly than the generic definition, no 'legal imagination' is 

required to hold that a realistic probability exists that the state 

will apply its statute to conduct that falls outside the generic 

definition of the crime. The state statute's greater breadth is 

evident from its text." (quoting Duenas-Alvarez, 549 U.S. at 193)). 
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In pressing this argument, the government points out 

that, as Mellouli itself makes clear, the categorical approach 

gives way to the "modified categorical approach" when the state 

law offense "contain[s] several different crimes, each described 

separately." Mellouli, 135 S. Ct. at 1986 n.4 (quoting Moncrieffe 

v. Holder, 133 S. Ct. 1678, 1684 (2013)). In such cases, "a court 

may determine which particular offense the noncitizen was 

convicted of by examining the charging document and jury 

instructions, or in the case of a guilty plea, the plea agreement, 

plea colloquy, or some comparable judicial record of the factual 

basis for the plea." Moncrieffe, 133 S. Ct. at 1684 (internal 

quotation marks omitted). And, in cases of that sort, if the 

adjudicator can determine from those records the particular state 

law offense for which the noncitizen was convicted, then the 

adjudicator need only determine whether that particular state law 

offense falls within the predicate federal offense under 

§ 1227(a)(2)(B)(i). See Mellouli, 135 S. Ct. at 1986 n.4. 

The government contends that we should apply the 

modified categorical approach to Rhode Island General Laws Section 

21-28-4.01(a)(4)(i). The government contends that this state 

statute does not set out one overarching offense covering all 

"controlled substances" on the state schedules. Rather, in the 

government's view, this state law offense creates distinct state 

law crimes for each distinct drug listed on the state drug 
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schedules. From that premise, the government then argues that 

Swaby's actual crime of conviction falls within the federally 

defined removable offense under § 1227(a)(2)(B)(i) because the 

relevant plea documents make clear that Swaby's convictions were 

for manufacturing, delivering, or possessing with intent to 

distribute marijuana, a drug that is listed on the federal drug 

schedules. 

Swaby's sole response is that Rhode Island law does not 

make the particular listed drug involved in the commission of an 

offense under Rhode Island General Laws Section 21-28-

4.01(a)(4)(i) an element of that offense. Rather, Swaby contends, 

the listed drugs merely set forth the means by which the broader 

crime of manufacturing, delivering, or possessing with intent to 

distribute a "controlled substance" may be committed. He thus 

contends that the modified categorical approach has no 

application. But we do not agree. 

In Mathis v. United States, 136 S. Ct. 2243, 2256-57 

(2016), the Supreme Court recently provided guidance about how to 

resolve the elements versus means issue that determines whether 

the modified categorical approach applies to a state criminal 

statute. And here the factors Mathis instructs us to consider 

lead us to reject Swaby's view. 

We start with how the Rhode Island Supreme Court has 

construed the offense. See Mathis, 136 S. Ct. at 2256 (explaining 
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that the "threshold inquiry -- elements or means? -- is easy" where 

"a state court decision definitively answers the question"). In 

State v. Feng, 421 A.2d 1258 (R.I. 1980), the Rhode Island Supreme 

Court expressly described the particular type of controlled 

substance listed in the state drug schedules as an element of an 

offense under Rhode Island General Laws Section 21-28-4.01, rather 

than merely as a possible means by which the offense may be 

committed. Feng did so in the course of deciding whether there 

was a sufficient factual basis to support a guilty plea to the 

charge of possession of "a controlled substance to wit, Lysergic 

Acid Dithylamide [LSD]" under Rhode Island General Laws Section 

21-28-4.01. 

Feng explained that a Rhode Island trial court can 

establish an adequate factual basis for a plea by reading the 

indictment to the defendant, but only if, among other things, "the 

elements of the crime are clearly set out." Id. at 1270 (quoting 

Seiller v. United States, 544 F.2d 554, 565 (2d Cir. 1975)). Yet, 

Feng noted, in the case at hand, the trial judge had "merely 

summarized the charge as 'knowledge and intent to possess a 

controlled substance.'" Id. at 1270-71. Feng then ruled that 

this summary did not suffice to supply the factual basis for the 

guilty plea precisely because the "[r]eference to 'a controlled 

substance' does not by itself set out the elements of the offense 

of possession of the particular controlled substance LSD." Id. at 
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1271.3 Moreover, other Rhode Island Supreme Court decisions accord 

with Feng's description of the drug's type as an element of the 

offense. See State v. Mendez, 116 A.3d 228, 239 (R.I. 2015) (jury 

instructions for the crime of possession of a controlled substance 

specified that "the State must show that the defendant possessed 

the controlled substance in question"); State v. Jenison, 442 A.2d 

866, 875 (R.I. 1982) (possession of a controlled substance requires 

"intentional control of the designated substance with knowledge of 

its nature" (emphasis added) (punctuation and citation omitted)). 

Our conclusion that this state law crime is divisible by 

the type of drug also accords with the face of the statute, which 

is not drafted merely "to offer 'illustrative examples,'" Mathis, 

136 S. Ct. at 2256, but instead assigns "different punishments," 

 3 In reaching this conclusion, Feng elaborated: 

Reference to "a controlled substance" does not by itself 

set out the elements of the offense of possession of the 

particular controlled substance LSD. The list of 

controlled substances contained in chapter 28 of title 

21 is exhaustive. Unlawful possession of more than one 

controlled substance constitutes a separate offense for 

each such substance possessed. We note also that at the 

time of Feng's arrest, several controlled substances 

were seized from his dormitory room, and the indictment 

itself charged Feng with possession of another 

controlled substance -- cocaine. In light of the wide 

range of substances classified as "controlled", we 

conclude that the trial justice's summary of the charge 

did not constitute a straightforward statement of the 

facts underlying the offense of possession of LSD. 

Feng, 421 A.2d at 1271. 
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id., based on the class of a drug, and then "exhaustive[ly]" lists 

the individual drugs by type on the state drug schedules. Feng, 

421 A.2d at 1271; see R.I. Gen. Laws § 21-28-4.01(a)(4). This 

feature of the Rhode Island statute, under Mathis, also points in 

favor of the conclusion that the offense sets out distinct crimes 

based on drug type. Mathis, 136 S. Ct. at 2256. 

Finally, Mathis explains that, even where "state law 

fails to provide clear answers, federal judges have another place 

to look: the record of a prior conviction itself." Mathis, 136 

S. Ct. at 2256. "[A]n indictment and jury instructions could 

indicate, by referencing one alternative term to the exclusion of 

all others, that the statute contains a list of elements, each one 

of which goes toward a separate crime." Id. at 2257. And the 

indictment in Swaby's case did exactly this, specifying that Swaby 

manufactured, delivered, or possessed with intent to distribute "a 

controlled substance, to wit, [m]arijuana." 

Our determination that the statute is divisible by drug 

type, moreover, comports with the rulings of several of our sister 

circuits, which have relied on similar considerations in applying 

the modified categorical approach to other state controlled 

substance statutes. See United States v. Henderson, 841 F.3d 623, 

629 (3d Cir. 2016); Carcamo v. Lynch, 648 F. App'x 306, 311-12 

(4th Cir. 2016); Ruiz-Giel v. Holder, 576 F. App'x 738, 743–44 
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(10th Cir. 2014). In fact, we are aware of no case holding 

otherwise.4 

Accordingly, we conclude that the modified categorical 

approach does apply. And Swaby does not dispute that, under the 

modified categorical approach, the relevant plea documents suffice 

to make clear that Swaby's convictions were for the manufacturing, 

delivering, or possessing with intent to distribute marijuana. We 

thus conclude that Swaby's convictions clearly do "relat[e] to a 

controlled substance (as defined in [the federal drug 

schedules])," just as § 1227(a)(2)(B)(i) requires. Accordingly, 

we deny Swaby's petition for review of the BIA's decision that 

Swaby had committed a removable offense.5

 4 Swaby does cite to two Massachusetts cases that construe 

that state's controlled substances criminal statute and that he 

contends, by analogy, support his view that this Rhode Island 

controlled substances law is not divisible with respect to the 

type of controlled substance. But, in addition to the fact that 

those cases do not construe Rhode Island law, they also establish 

only that a defendant need not know the particular identity of the 

controlled substance. They do not address whether the government 

must prove the identity of the particular controlled substance. 

Commonwealth v. DePalma, 673 N.E.2d 882, 884 (Mass. App. Ct. 1996); 

Commonwealth v. Rodriguez, 614 N.E.2d 649, 653 (Mass. 1993). And 

other Massachusetts cases appear to establish that the government 

actually must do so. See Commonwealth v. Vasquez, 923 N.E.2d 524, 

534 (Mass. 2010); Commonwealth v. McGilvery, 908 N.E.2d 783, 787 

(Mass. 2009). 

5 Although the IJ originally denied Swaby's motion to 

terminate proceedings based on its application of the modified 

categorical approach, the BIA did not affirm the IJ's order on 

that ground. Ordinarily, we would not uphold an agency's decision 

on grounds that the agency did not itself supply. See SEC v. 

Chenery Corp., 332 U.S. 194 (1947). We do so here, however, 
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IV. 

Swaby next challenges the denial of his motion for 

cancellation of removal, a discretionary form of relief that may 

be granted when positive factors weighing against removal outweigh 

negative factors that counsel in favor of removal. See 8 U.S.C. 

§ 1229b(a); Matter of C-V-T-, 22 I. & N. Dec. 7, 10-12 (BIA 1998). 

Swaby recognizes that "[c]ancellation of removal is a form of 

discretionary relief over which we generally have no appellate 

jurisdiction," unless a petitioner raises "at least a colorable 

constitutional claim or question of law." Elysee v. Gonzales, 437 

F.3d 221, 223 (1st Cir. 2006). He thus seeks to frame his 

challenges as ones that identify a legal error rather than a 

questionable exercise of discretion. 

We review questions of law de novo, though we accord 

"some deference to the BIA's interpretation of the statutes and 

regulations that come within its purview." Mendez-Barrera v. 

Holder, 602 F.3d 21, 24 (1st Cir. 2010). And when the BIA adopts 

and affirms an IJ's decision, as the BIA did here, we review the 

IJ's decision "to the extent of the adoption, and the BIA's 

decision as to [any] additional ground." Sunoto v. Gonzales, 504 

 

because the parties agree, that no purpose would be served by 

remanding this case to the agency to apply the modified categorical 

approach given that, as a matter of law, the modified categorical 

approach dictates the outcome, just as the IJ had ruled. See NLRB 

v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (remand not 

required where it would be an "idle and useless formality"). 
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F.3d 56, 59–60 (1st Cir. 2007) (quoting Berrio-Barrera v. Gonzales, 

460 F.3d 163, 167 (1st Cir. 2006)). 

With that background in place, we turn now to the first 

of Swaby's challenges. Swaby contends that the IJ erred as a 

matter of law in balancing the positive and negative factors in 

this case by impermissibly considering as a negative factor the 

fact that Swaby's five children have five different mothers. Swaby 

contends in this regard that, under Matter of C-V-T-, the only 

negative factors an IJ may consider are the noncitizen's 

immigration and criminal records and matters pertaining to them. 

In fact, Matter of C-V-T- is not so strict. 22 I. & N. 

Dec. at 11 (explaining that noncitizens' immigration and criminal 

records are "[a]mong the factors deemed adverse" to them, but so 

too is "the presence of other evidence indicative of a respondent's 

bad character or undesirability as a permanent resident of this 

country"). But, of more significance here, the IJ recognized that 

the fact that Swaby has five children in the United States was a 

positive factor. The IJ thus referenced the fact that Swaby's 

children had different mothers not as a negative factor but only 

in the course of evaluating the strength of Swaby's ties to those 

children. The evaluation of the strength of those ties falls well 

within the IJ's discretion to assess the strength of a positive 

factor. There is thus no basis in the record for Swaby's assertion 

of legal error. 
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Swaby next contends that the IJ erred by "entirely 

fail[ing] to consider" the hardship that would befall two of 

Swaby's children if Swaby were removed. This contention fails to 

present a colorable legal challenge over which we have 

jurisdiction. For even if a complete failure to consider such 

hardship constitutes a legal error, cf. Elysee, 437 F.3d at 223-

24 (holding that a petition for review based on "the IJ's supposed 

'complete[] disregard[]' for the hardships that will be faced by 

[petitioner's] children if he is deported" raised no question of 

law); Mele v. Lynch, 798 F.3d 30, 32 (1st Cir. 2015) ("[W]here 

Congress has enacted a jurisdictional wall, an alien cannot scale 

it simply 'by relitigat[ing] whether the factors relevant to [the] 

discretionary relief were appropriately weighed by the IJ and the 

BIA.'" (quoting Urizar-Carrascoza v. Holder, 727 F.3d 27, 32 (1st 

Cir. 2013) (modifications in original)), there is no colorable 

argument that such a failure occurred here. 

The record reveals that the IJ identified hardship to 

Swaby's family as a positive factor and considered all of the 

exhibits that Swaby submitted, including Swaby's affidavit and 

affidavits from family members and friends, as well as Swaby's 

testimony, noting that Swaby had expressed "particular concern" 

about the hardship that would befall one of Swaby's children. The 

IJ then stated that it had weighed the positive factors against 

the negative factors. No more was required. See Telyatitskiy v. 
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Holder, 628 F.3d 628, 631 (1st Cir. 2011) (holding that where 

"[t]he record reveals that the IJ considered the totality of the 

evidence presented," the IJ does not err "merely by failing to 

address specifically each piece of evidence the petitioner 

presented"). For these reasons, Swaby's petition for review of 

the IJ's denial of Swaby's request for cancellation of removal is 

dismissed. 

V. 

In light of the foregoing, the petition for review is 

denied in part and dismissed in part.