IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60449

IVAN ALEXANDROVICH VETCHER, 

 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Petitioner Ivan Vetcher (“Vetcher”) contests his detention and removal 

pursuant to Section 241 of the Immigration and Nationality Act (“INA”) (8 

U.S.C. § 1231) and Section 202 of the Controlled Substances Act (21 U.S.C. § 

812). He seeks review of the May 11, 2018 decision of the Board of Immigration 

Appeals (“BIA”) that affirmed the Immigration Judge’s (“IJ”) decision ordering

his removal from the United States. For the reasons set forth herein, we DENY 

Vetcher’s petition for cancellation of removal.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

Vetcher is a 29 year-old native of Belarus whose family fled to the United 

States in 2001 as refugees; he was 11 years old at the time. He became a lawful 

United States Court of Appeals

Fifth Circuit

FILED

March 19, 2020

Lyle W. Cayce

Clerk

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resident in 2005 at the age of 15. He is married to an American citizen with 

whom he shares a 5 year-old son and two step-children from his wife’s previous 

relationship. In 2009, 2011, and 2012, Vetcher was arrested on charges 

including burglary, obstruction of justice, and obstructing police. In April 2014,

Vetcher was arrested for selling psychedelic/hallucinogenic mushrooms. 

Vetcher pled guilty to two counts of “deliver[ing], by actual transfer, 

constructive transfer and offer to sell to another, a controlled substance, 

namely, psilocybin/psilocin, in an amount of four grams or more but less than 

400 grams,” pursuant to Texas Health & Safety Code § 481.113(d). In May 

2014, Vetcher was sentenced to ten years of imprisonment on each count to run 

concurrently, though each sentence was fully suspended in favor of a ten-year 

period of community supervision. 

On July 2, 2014, the Department of Homeland Security (“DHS”) 

personally served Vetcher with a notice to appear (“NTA”). It notified Vetcher 

of his removability based upon the April 2014 drug trafficking conviction and 

ordered him to appear at removal proceedings before an IJ in Dallas, Texas, on 

a “date and time to be set.” Vetcher was detained pending his removal 

proceedings, and the NTA was filed with the immigration court on July 8, 2014. 

On July 10, 2014, the immigration court issued Vetcher a “notice of hearing” 

scheduling his initial hearing before the IJ for July 17, 2014 at 8:30 a.m. 

B. Procedural History

The DHS charged Vetcher with deportability as an alien charged with 

an “aggravated felony.” In its August 6, 2014 decision, the IJ sustained the 

aggravated felony charge and found Vetcher ineligible for asylum and 

withholding of removal on the basis that the aggravated felony charge was a 

“particularly serious crime.” Filing pro se, Vetcher appealed that decision to 

the BIA. The BIA dismissed the appeal in December 2014, holding that the 

aggravated felony drug charge was indeed a particularly serious crime which 

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prevented Vetcher from seeking asylum and withholding of removal. Still 

proceeding pro se, Vetcher then sought relief from this court when he filed a 

petition for stay of removal pending review in January 2015. A couple of 

months later in March 2015, Vetcher filed a motion to re-open his case with 

the BIA. 

On April 9, 2015, this court granted Vetcher’s petition to stay the 

removal pending review, holding that “a Texas conviction for delivery of a 

controlled substance by offering to sell is not categorically an ‘aggravated 

felony,’ as defined by the INA because it penalizes conduct that does not 

amount to a felony under the Controlled Substances Act.” Vetcher v. Holder, 

No. 15-60047, Slip Op. (5th Cir. Apr. 9, 2015). On June 25, 2015, the BIA sua 

sponte re-opened and remanded the proceedings back to the IJ for reconsideration of Vetcher’s status as an alien convicted of an aggravated felony. 

After the proceedings were remanded, the government withdrew the 

aggravated felony charge and asserted a different basis for removal—Section 

237(a)(2)(B)(i) of the INA—which provides in relevant part that “[a]ny alien 

who . . . has been convicted of a violation of . . . any law . . . of a State . . . 

relating to a controlled substance (as defined in Section 802 of Title 21) . . . is 

deportable.” 8 U.S.C. § 1227(a)(2)(B)(i).

In its October 27, 2015 decision on remand, the IJ denied Vetcher’s

petition for withholding of removal and cancellation of removal because, after 

balancing the equities, it found that Vetcher’s admitted drug trafficking and 

no signs of “real rehabilitation” from that conduct outweighed the fact that he 

was remorseful for his drug trafficking and that he has family in the United 

States. Vetcher appealed this decision to the BIA again, as a pro se litigant.

In its November 8, 2016 decision, the BIA affirmed in part the IJ’s 

findings that Vetcher’s 2014 conviction under Texas Health & Safety Code § 

481.113(d) constitutes both a controlled substance violation, rendering Vetcher 

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removable, and a particularly serious crime, rendering him ineligible for 

withholding of removal under the INA. However, the BIA remanded the IJ’s 

denial of Vetcher’s petition for cancellation of removal stating that the IJ’s 

decision “was not supported by complete factual findings.” On October 4, 2017,

the IJ denied Vetcher’s application for discretionary cancellation of removal

finding, inter alia, that Vetcher’s claim that he had rehabilitated and turned 

away from drug sales was “severely undercut by [Vetcher’s] continuing 

argument that he is not guilty of any crime.” On appeal, the BIA restated and

declined to revisit these conclusions in its May 11, 2018 decision while 

affirming the IJ’s October 4, 2017 decision to deny Vetcher’s petition for 

cancellation of removal from the United States. Vetcher timely appealed to this 

court, requesting that the court re-open his removal proceedings and allow him

to re-litigate his claims with the adequate legal resources. 

II. STANDARD OF REVIEW

“When reviewing a BIA decision, questions of law are reviewed de novo, 

but this Court defers to the BIA’s interpretation of immigration statutes and 

regulations.” Vazquez v. Sessions, 885 F.3d 862, 870 (5th Cir. 2018) (citing 

Danso v. Gonzales, 489 F.3d 709, 712–13 (5th Cir. 2007)); cf. Gomez-Palacios 

v. Holder, 560 F.3d 354, 358 (5th Cir. 2009) (“[T]his court accords deference to 

the BIA’s interpretation of immigration statutes unless the record reveals 

compelling evidence that the BIA’s interpretation is incorrect.”). Though our 

review is generally limited to the BIA’s decision, we may also review the IJ’s 

decision when it influences the BIA’s decision or where the BIA has adopted 

all or part of the IJ’s reasoning. Le v. Lynch, 819 F.3d 98, 104 (5th Cir. 2016). 

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III. DISCUSSION

A. Though Vetcher’s state law conviction is not a facial categorical 

match to the federal schedule of controlled substances, there is no 

realistic probability that Texas courts will apply its statute to conduct 

that falls outside of the scope of the federal analog.

Vetcher argues that his state law conviction is not a categorical match to 

the federal schedule of controlled substances because there are at least 43 

substances in Penalty Group 2-A that were not on any federal schedule at the 

time of his conviction. To determine if a state law conviction renders an alien 

eligible for removal under the INA, courts apply the categorical approach. 

Vazquez, 885 F.3d at 870. As explained in Vazquez:

The categorical approach analyzes whether the elements of the 

state conviction are the same as or narrower than the elements of 

the generic removability offense under federal law, while ignoring 

the particular facts of the case. A state offense is a categorical 

match with a generic federal offense only if a conviction of the state 

offense would necessarily involve proving facts that would 

establish a violation of the generic federal offense. See Moncrieffe 

v. Holder, 569 U.S. 184, 190, 133 S. Ct. 1678, 185 L.Ed.2d 727 

(2013). When comparing statutes under the categorical approach, 

courts only look to the statutory definitions; “[a]n alien’s actual 

conduct is irrelevant to the inquiry.” [Mellouli v. Lynch, 135 S. Ct. 

1980, 1986 (2015)]. A court thus “must presume that the conviction 

rested upon nothing more than the least of the acts criminalized” 

and determine whether those acts correspond to the generic 

federal offense referenced in the removal statute. Moncrieffe, 569 

U.S. at 190–91, 133 S. Ct. 1678 (internal quotation marks, 

brackets, and citation omitted). 

Id. at 870–71.

However, if “a state statute criminalizes offenses that fall outside of the 

federal generic definition, there is not a categorical match.” Id. at 871. “If there 

is a categorical match between the predicate offense and generic definition, the 

inquiry ends there.” Id. (citing Esparza–Rodriguez v. Holder, 699 F.3d 821, 825 

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(5th Cir. 2012)). When there is a categorical match, a state law conviction 

triggers removal under the INA. Id.

Texas Health & Safety Code § 481.113(a) provides that “a person 

commits an offense if the person knowingly manufactures, delivers, or 

possesses with intent to deliver a controlled substance listed in Penalty Group 

2 or 2-A.” Subsection (d) then provides, “[a]n offense under Subsection (a) is a 

felony of the first degree if the amount of the controlled substance to which the 

offense applies is, by aggregate weight, including adulterants or dilutants, four 

grams or more but less than 400 grams.” Id. at § 481.113(d). Thus, the elements 

we examine are: the (1) manufacture, delivery, or possession with intent to 

deliver, (2) 4 grams or more but less than 400 grams of, (3) a controlled 

substance listed in “Penalty Group 2 or 2-A.” Id. at § 481.113(a).

Section 237(a)(2)(B)(i) of the INA provides, in relevant part, that “[a]ny

alien who . . . has been convicted of a violation of . . . any law or regulation of a 

State [or] the United States . . . relating to a controlled substance (as defined 

in Section 102 of the Controlled Substances Act (21 U.S.C. [§] 802)) is 

deportable.” 8 U.S.C. § 1227(a)(2)(B)(i). The Controlled Substances Act defines 

“controlled substance” as “a drug or other substance, or immediate precursor, 

included in schedule I, II, III, IV, or V of part B of this subchapter.” 21 U.S.C. 

§ 802(6). 

We are not satisfied that there is a categorical match between Texas 

Health & Safety Code § 481.113(a) and the INA, §1227(a)(2)(B)(i) because 

Texas’s statute of conviction is facially broader than its federal analog. 

Vazquez, 885 F.3d at 871. There are at least six substances listed in Penalty 

Group 2 that do not appear on any federal schedule. Compare TEX. HEALTH &

SAFETY CODE § 481.103(a)(1) with 21 U.S.C. § 812. The same is true for Penalty 

Group 2-A. Vetcher identified at least 43 substances that are not federally 

controlled. Compare TEX. HEALTH & SAFETY CODE § 481.1031(a) with 21 U.S.C.

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§ 812. For this reason, there is no categorical match. Vazquez, 885 F.3d at 871 

(holding that the BIA erred in finding that there was a categorical match 

between the Oklahoma statute and the INA because the Oklahoma statute 

prohibited at least two substances that are not on any federal schedule).

But, the inquiry does not stop there. To show that the Texas statute is 

broader than its federal counterpart, Vetcher must also show “a realistic 

probability” that Texas will prosecute the “conduct that falls outside the 

generic definition of a crime.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). 

To do so, the detainee must “point to his own case or other cases in which the 

state courts in fact did apply the statute in the special (nongeneric) manner.” 

Vazquez, 885 F.3d at 873; see United States v. Castillo-Rivera, 853 F.3d 218, 

223 (5th Cir. 2017) (en banc) (“[A] defendant must point to an actual state case 

applying a state statute in a nongeneric manner, even where the state statute 

may be plausibly interpreted as broader on its face.”). 

Vetcher has not identified case law demonstrating a realistic probability 

that Texas would apply § 481.113(a) to conduct that falls outside of the federal 

definition. First, he pointed to anonymous state arrest records from June 2012 

and August 2013 where suspects were arrested for substances that were not 

yet federally controlled until 2014. Then, he points to State v. Moseley, No. 09-

14-00279-CR, 2015 WL 474331 (Tex. App.—Beaumont Feb. 4, 2015, pet. ref’d),

but the substance at issue there was a federally controlled substance. 2015 WL 

474331 at *4. Then, in his reply brief, he cites to the State’s brief in Carter v. 

Texas, No. 07-18-00043-CR, 2018 WL 6844514 (Tex. App.—Amarillo Dec. 19, 

2018), a case currently pending in the Texas intermediate appellate court, 

arguing that, at the time, the state prosecuted a substance (fluoro-ADB) that 

was not on a federal schedule until months later. See State’s Br., 2018 WL 

6844514 at *23–24, *27–29; see also Federal Schedule I, 21 C.F.R. § 1308.11 

(eff. Apr. 10, 2017). 

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Again, “to successfully argue that a state statute is nongeneric, a 

defendant must provide actual cases where state courts have applied the 

statute in that way.” Castillo-Rivera, 853 F.3d at 223. Because Carter is still 

pending in Texas courts, it necessarily is not settled law within the state which, 

in turn, does not make it reliable in this context. Reliance on a brief filed in 

that case is not the law. Nothing Vetcher has provided demonstrates a realistic 

probability that the courts in Texas will apply § 481.113(a) to conduct that falls

outside of what the federal analog controls. Accordingly, we hold that there is 

not a realistic probability that Texas will apply § 481.113(a) in a nongeneric 

manner. Therefore, Vetcher is not eligible for cancellation of removal. 

B. Vetcher is Ineligible for Withholding of Removal because his State 

Law Conviction is a “Particularly Serious Crime” within the meaning 

of the Statute

Vetcher contests the determination that he was convicted of a 

particularly serious crime because his conviction was found to not be an 

aggravated felony. In his view, the term “particularly serious crime” is limited 

to aggravated felonies. We disagree.

Section 241 of the INA provides an exception to removal when an alien’s 

life or freedom would be jeopardized for any of the enumerated reasons. 8 

U.S.C. § 1231(b)(3)(A). However, that exception does not apply to an alien 

“having been convicted by a final judgment of a particularly serious crime 

[who] is a danger to the community of the United States.” Id. at § 

1231(b)(3)(B)(ii). 

For purposes of clause (ii), an alien who has been convicted of an 

aggravated felony (or felonies) for which the alien has been 

sentenced to an aggregate term of imprisonment of at least 5 years 

shall be considered to have committed a particularly serious crime. 

The previous sentence shall not preclude the Attorney General 

from determining that, notwithstanding the length of sentence 

imposed, an alien has been convicted of a particularly serious 

crime.

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Id. at § 1231(b)(3)(B)(iv). 

Vetcher contends that the above clarifying language (1) limits 

particularly serious crimes to aggravated felonies with a minimum five-year 

prison term and (2) limits the Attorney General’s discretion to determine other 

particularly serious crimes to aggravated felonies with prison terms up to five

years in length. The government counters that a crime need not be an 

aggravated felony in order to be a “particularly serious crime.” Specifically, the 

government argues that the first sentence in the statutory language that 

clarifies the second clause of § 1231(b)(3)(B) is a declaration that aggravated 

felonies are per se particularly serious crimes. It then argues that the second 

sentence grants the Attorney General the discretion to determine what is and 

is not a “particularly serious crime.” We agree with the government for two 

reasons: (1) there is uniform federal circuit authority supporting its view, and 

(2) we understand Congress to give distinct meaning to the terms “aggravated 

felony” and “particularly serious crime” such that adopting Vetcher’s reading 

of the statute would render the term “particularly serious crime” superfluous.

The First, Second, Fourth, Seventh, Ninth, and Tenth Circuits have all 

held that the phrase “particularly serious crime” is not limited to aggravated 

felonies, and have all said that determining whether a non-aggravated felony 

offense is a “particularly serious crime” should be done on a case-by-case basis. 

E.g., Valerio-Ramirez v. Sessions, 882 F.3d 289, 296–97 (1st Cir. 2018); 

Delgado v. Holder, 648 F.3d 1095, 1104 (9th Cir. 2011); Gao v. Holder, 595 F.3d 

549, 554 (4th Cir. 2010); N-A-M- v. Holder, 587 F.3d 1052, 1056 (10th Cir. 

2009); Nethagani v. Mukasey, 532 F.3d 150, 156–57 (2d Cir. 2008); Ali v. 

Achim, 468 F.3d 462, 470 (7th Cir. 2006). Most recently, the Third Circuit, 

sitting en banc, overruled its decision in Alaka v. Att’y Gen., 456 F.3d 88 (3d 

Cir. 2006), when it held that, in the context of withholding of removal, “both 

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aggravated felonies and other offenses can be particularly serious crimes.” 

Bastardo-Vale v. Att’y Gen., 934 F.3d 255, 267 (3d Cir. 2019) (en banc). 

In Bastardo-Vale, the Third Circuit was tasked with interpreting the 

phrase “particularly serious crime” within the context of the asylum statute 

and the withholding of removal statute, both of which are codified in the INA. 

See 8 U.S.C. § 1158(b); see also 8 U.S.C. § 1231. The petitioner there sought 

both asylum and withholding of removal, unlike Vetcher who seeks only 

withholding of removal as he is ineligible for asylum. See 8 U.S.C. § 

1158(b)(2)(A)(ii). However, because the phrase is used in different sections of 

the same statute and in the same context of deportation relief, we agree that 

there should be a singular meaning of the one phrase “particularly serious 

crime” so that there is consistency in the interpretation of the INA as a whole. 

See Bastardo-Vale, 934 F.3d at 267 n.6 (“The differences in the statutes do not 

mean that the phrase ‘particularly serious crime’ should be given a different 

meaning . . . .” in the withholding of removal and asylum contexts); see also 

Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507, 1512

(2019) (“In all but the most unusual situations, a single use of a statutory 

phrase must have a fixed meaning. We therefore avoid interpretations that 

would attribute different meanings to the same phrase.”) (internal citations 

omitted); Smith v. City of Jackson, Miss., 544 U.S. 228, 233 (2005) (holding 

that “when Congress uses the same language in two statutes having similar 

purposes, particularly when one is enacted shortly after the other, it is 

appropriate to presume that Congress intended that text to have the same 

meaning in both statutes.”). 

Likewise, we also agree with the Bastardo-Vale en banc court that 

Congress’s use of the terms “aggravated felony” and “particularly serious 

crime” was intentional and should be given their separate meanings. BastardoVale, 934 F.3d at 266. If Congress intended otherwise, then it would have not 

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included the term alongside “aggravated felony.” See id. (“To say that only 

aggravated felonies are ‘particularly serious crimes’ would render the words 

‘particularly serious crime’ surplusage.”). Accordingly, we conclude that

Vetcher is ineligible for withholding of removal because the IJ’s determination, 

along with the BIA’s affirmance, that Vetcher was convicted of a “particularly 

serious crime” was not error. 

C. Vetcher’s Due Process Rights Were Not Violated 

“[T]he Fifth Amendment entitles aliens to due process of law in 

deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). Though 

removal proceedings are civil, not criminal, in nature, removal proceedings 

must be conducted according to standards of fundamental fairness. See 

Olabanji v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992); see also In re Beckford, 

22 I. & N. Dec. 1216, 1225 (B.I.A. 2000) (“A removal hearing must be conducted 

in a manner that satisfies principles of fundamental fairness.”). This includes 

an alien’s right to a full and fair hearing. See Matter of M-A-M, 25 I. & N. Dec. 

474, 479 (B.I.A. 2011). To succeed on a due process challenge to removal 

proceedings, a detainee must make an initial showing of substantial prejudice. 

Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997). To show a due process 

violation due to inadequate law library resources, a detainee must 

“demonstrate that the alleged shortcomings in the library or legal assistance 

program hindered his efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. 

343, 351 (1996). 

Vetcher argues that he has satisfied Lewis by showing that he was 

prejudiced in his pursuit of withholding and, later, cancellation of removal. 

Specifically, he contends that he complained on numerous occasions about the 

deficiency of the detention facility’s law library while he was detained. He 

argues that his pro se efforts to challenge his detention, the finding of his 

removability, and the finding that he was ineligible for cancellation for removal 

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were hampered by the absence of Title 21 of the United States Code, Texas 

statutes, case law interpreting what constitutes a “particularly serious crime,” 

United States Supreme Court precedent, and “several relevant federal cases 

[that] the Government cited in its briefing.” We disagree.

As a pro se litigant, Vetcher successfully secured an initial stay of 

removal from this court. Two separate BIA decisions remanded his proceedings 

back to the IJ. He also preserved all relevant issues for appeal. Vetcher’s 

intermittent successes throughout the course of his pro se efforts are beyond 

admirable. None of the perceived hindrances Vetcher points out stopped him

from being able to research the law, draft, mail and file his pleadings, and 

appeal his claims for the better part of four years without the assistance of 

legal counsel. Implicitly, Vetcher argues that since he did not win on his claims 

(specifically the categorical match argument) and because those materials 

were unavailable, that there was a due process violation. To his detriment, that 

is not the legal standard. Accordingly, we find no due process violation here. 

IV. CONCLUSION

For the aforementioned reasons, we DENY Vetcher’s petition for 

cancellation of removal. 

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