     Case: 17-60744   Document: 00514829668     Page: 1    Date Filed: 02/11/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                    FILED
                                                               February 11, 2019
                                 No. 17-60744
                                                                 Lyle W. Cayce
                                                                      Clerk
MARIA SYLVIA CARDOSO DE FLORES, also known as Maria Flores,

             Petitioner

v.

MATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL,

             Respondent



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


Before KING, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:
      An immigration judge ordered petitioner Maria Sylvia Cardoso de Flores
removed from the United States. Cardoso de Flores had been lawfully admitted
as a permanent resident alien, but the immigration judge determined she was
removable under the Immigration and Nationality Act because she was
convicted of a drug offense. The Board of Immigration Appeals affirmed.
Cardoso de Flores petitions this court for review, arguing that she is not
removable because she was convicted for possessing a small amount of
marijuana for personal use. We find no error in the BIA’s analysis; accordingly,
we DENY Cardoso de Flores’s petition.
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                                    No. 17-60744
                                           I.
      Cardoso de Flores, a Mexican citizen, was lawfully admitted to the
United States as a permanent resident alien in 1998 after marrying a United
States citizen. In 2000, authorities in Tennessee arrested Cardoso de Flores
after finding her in a car carrying 54.6 pounds of marijuana. A Tennessee
grand jury indicted Cardoso de Flores with possessing with the intent to sell
more than 4,536 grams of marijuana in violation of Tenn. Code Ann. § 39-17-
417. Cardoso de Flores later pleaded guilty to the lesser offense of possession
of a controlled substance in violation of Tenn. Code Ann. § 39-17-418.
      In 2010, the Department of Homeland Security issued Cardoso de Flores
a notice to appear charging her with removability under 8 U.S.C.
§ 1227(a)(2)(B)(i)—part of the Immigration and Nationality Act (“INA”)—
because she had been convicted of a controlled-substance offense. Cardoso de
Flores argued through counsel that her Tennessee conviction did not render
her removable because her conviction was for “a single offense involving
possession for one’s own use of 30 grams or less of marijuana,” which
§ 1227(a)(2)(B)(i) excepts as grounds for removal. Looking to Cardoso de
Flores’s arrest report, an immigration judge (the “IJ”) determined that Cardoso
de Flores’s conviction involved possession of 54.6 pounds of marijuana. 1 The IJ
therefore determined that § 1227(a)(2)(B)(i)’s personal-use exception did not
apply. The IJ further found Cardoso de Flores was not entitled to cancellation
of removal because she did not live in the United States continuously for seven
years prior to her offense. Accordingly, the IJ ordered Cardoso de Flores
removed from the United States.




      1 There are 453.592 grams in a pound. Therefore, Cardoso de Flores was caught with
well over 30 grams of marijuana.
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                                 No. 17-60744
      Cardoso de Flores appealed to the Board of Immigration Appeals (“BIA”).
Following its precedent, the BIA applied a circumstance-specific inquiry to
determine whether the personal-use exception applied to Cardoso de Flores’s
conviction. It determined as a threshold matter that the Tennessee statute
supporting Cardoso de Flores’s conviction was not limited to simple possession
of 30 or fewer grams of marijuana. Then, looking to Cardoso de Flores’s arrest
report, criminal complaint, and plea colloquy, the BIA determined that
Cardoso de Flores possessed 54.6 pounds of marijuana. Finding no contrary
evidence, it concluded that the personal-use exception did not apply and
affirmed the IJ’s order. Cardoso de Flores now petitions this court for review.
                                      II.
      Where, as here, the BIA issues its own opinion explaining its reasoning,
we review the BIA’s opinion instead of the IJ’s order. See Ghotra v. Whitaker,
912 F.3d 284, 287 (5th Cir. 2019). “Although we generally review its legal
conclusions de novo, ‘the BIA is entitled to Chevron deference when it
interprets a statutory provision of the INA and gives the statute “concrete
meaning through a process of case-by-case adjudication,”’ so long as the BIA’s
opinion is precedential.” Calvillo Garcia v. Sessions, 870 F.3d 341, 343-44 (5th
Cir. 2017) (footnotes omitted) (quoting Ali v. Lynch, 814 F.3d 306, 309-10 (5th
Cir. 2016)); see also Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S.
837, 843-44 (1984). Under Chevron, we afford agency interpretations of
statutes “‘controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute’ or Congress has ‘unambiguously expressed’
a contrary intent.” Calvillo Garcia, 870 F.3d at 344 (quoting Orellana-Monson
v. Holder, 685 F.3d 511, 517 (5th Cir. 2012)). We review the BIA’s factual
findings for substantial evidence. Ghotra, 912 F.3d at 287.




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                                  No. 17-60744
                                       III.
      Section 1227 lists categories of aliens subject to removal, including:
            Any alien who at any time after admission has been
      convicted of a violation of (or a conspiracy or attempt to violate)
      any law or regulation of a State, the United States, or a foreign
      country relating to a controlled substance (as defined in section
      802 of Title 21), other than a single offense involving possession
      for one’s own use of 30 grams or less of marijuana.


§ 1227(a)(2)(B)(i). Courts must apply the so-called categorical approach to
determine whether an alien’s conviction relates to a controlled substance. See
Mellouli v. Lynch, 135 S. Ct. 1980, 1985-87 (2015). Under the categorical
approach, courts “look[] to the statutory definition of the offense of conviction,
not to the particulars of an alien’s behavior.” Id. at 1986.
      The parties do not dispute that the categorical approach governs
whether Cardoso de Flores’s conviction relates to a controlled substance, nor
do they dispute that under the categorical approach, Cardoso de Flores’s
conviction in fact does relate to a controlled substance. Rather, the dispute is
over the exception in the final clause of § 1227(a)(2)(B)(i): “other than a single
offense involving possession for one’s own use of 30 grams or less of marijuana.”
The BIA applies a circumstance-specific approach to determine whether a
conviction falls within this personal-use exception. See Davey, 26 I. & N. Dec.
37, 39 (B.I.A. 2012).
      The BIA’s approach to assessing removability under § 1227(a)(2)(B)(i)
proceeds in three parts. First, it applies the categorical approach to determine
whether an alien’s conviction relates to a drug offense. See, e.g.,
Wanniarachchi, 2018 WL 3045846, at *2 (B.I.A. Apr. 23, 2018) (unpublished).
If so, it then asks whether “the fact of conviction is sufficient by itself to
conclusively establish all facts relevant to prove the applicability of the”
exception. Dominguez-Rodriguez, 26 I. & N. Dec. 408, 413 (B.I.A. 2014). If this
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                                 No. 17-60744
is the case, the “inquiry is at an end, and the removal charge must be dismissed
without resort to a circumstance-specific inquiry.” Id. But if the fact of the
conviction is not enough to show the personal-use exception applies, then the
BIA looks to the specific facts supporting the alien’s conviction to ascertain
whether the conviction involved personal possession of 30 grams or less of
marijuana. See Davey, 26 I. & N. Dec. at 39. Therefore, for example, if an alien
was convicted of violating a statute that criminalizes simple possession of 29
grams or less of marijuana, then the elements of the conviction would
conclusively establish that the alien’s offense fell within the personal-use
exception and the BIA would have no reason to look at the facts supporting the
conviction. But if, as the BIA concluded was the case here, the alien was
convicted of violating a statute that criminalizes simple possession of
marijuana without reference to quantity, then the BIA looks to the facts
supporting the conviction to determine the quantity involved.
      Cardoso de Flores maintains that this approach is incorrect. She says
the categorical approach must apply to § 1227(a)(2)(B)(i) in its entirety. In
other words, Cardoso de Flores argues that—regardless of the real-world facts
supporting her conviction—if she could have been convicted under the same
Tennessee statute for possessing 30 grams or less of marijuana for her personal
use, then the personal-use exception applies to her conviction. She also argues
that the personal-use exception should apply to her conviction even under the
BIA’s approach because her conviction necessarily involved the possession of
30 grams or less of marijuana for her personal use.
                                      A.
      We have never directly addressed the BIA’s position that the
circumstance-specific approach applies to the personal-use exception in
§ 1227(a)(2)(B)(i). We have applied the BIA’s circumstance-specific approach
on one occasion. See Esquivel v. Lynch, 803 F.3d 699, 702 (5th Cir. 2015). But
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                                       No. 17-60744
we specifically noted that neither party challenged the BIA’s approach and that
our holding would have been the same under the categorical approach. See id.
at 702 n.2. Now faced squarely with this question, we conclude that the BIA’s
position that the personal-use exception requires a circumstance-specific
inquiry is a reasonable interpretation of the INA; we therefore defer to the
BIA. 2
         The Supreme Court’s analysis in Nijhawan v. Holder, 557 U.S. 29 (2009),
all but compels this result. In Nijhawan, the Court considered a different
section of the INA that defines the term “aggravated felony” for purposes of
§ 1227(a)(2)(A)(iii). See 557 U.S. at 32. Under that definition, an alien is
removable for having committed an aggravated felony if the alien is convicted
of, inter alia, “an offense that . . . involves fraud or deceit in which the loss to
the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). The alien
in Nijhawan had been convicted in federal court of violating five federal fraud
statutes. 557 U.S. at 32. None of the statutes at issue required the Government
to prove a specific loss, but the alien stipulated at sentencing that he defrauded
his victims of more than $100 million. Id. Thus, if § 1101(a)(43)(M)(i)’s $10,000
threshold referred to an element that must be proved in every instance to
sustain a conviction, then the alien’s fraud convictions would not have been
aggravated-felony convictions. But if the $10,000 threshold referred to facts
underlying the convictions, then the fraud convictions would have been
aggravated-felony convictions.




         Although the BIA’s decision below was from a single board member and is thus not
         2

precedential, see Dhuka v. Holder, 716 F.3d 149, 155 (5th Cir. 2013), that decision followed
prior published three-member decisions in which the BIA held the circumstance-specific
approach applies to the personal-use exception. See Oanh Nguyen v. Holder, 542 F. App’x
384, 389 (5th Cir. 2013) (unpublished) (per curiam) (“[P]rior precedential BIA decisions cited
by [a] single-member decision will be afforded Chevron deference as appropriate.”).
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                                  No. 17-60744
      The Court determined that the $10,000 threshold referred to the specific
facts of the crime. See id. at 40. The Court began its analysis by observing:
      [I]n ordinary speech words such as ‘crime,’ ‘felony,’ ‘offense,’ and
      the like sometimes refer to a generic crime, say, the crime of fraud
      or theft in general, and sometimes refer to the specific acts in
      which an offender engaged on a specific occasion, say, the fraud
      that the defendant planned and executed last month.

Id. at 33-34. The Court then recognized that it had previously interpreted the
term “violent felony” in the Armed Career Criminal Act (the “ACCA”) to refer
to generic crimes. See id. at 34-35. But it explained that the language in the
ACCA’s definition of “violent felony” refers to generic crimes and elements of
crimes. See id. at 36. By contrast, the Court noted, § 1101(a)(43)’s definition of
“aggravated felony” uses some “language that almost certainly does not refer
to generic crimes but refers to specific circumstances.” Id. at 37.
      To illustrate, the Court gave the example of § 1101(a)(43)(P), which
defines aggravated felony to include “falsely making, forging, counterfeiting,
mutilating, or altering a passport . . . except in the case of a first offense for
which the alien . . . committed the offense for the purpose of assisting . . . the
alien’s spouse, child, or parent.” See id. (second and third omissions in original)
(emphasis omitted) (quoting § 1101(a)(43)(P)). The Court explained that
“‘forging . . . passport[s]’ may well refer to a generic crime,” but it said the
“exception cannot possibly refer to a generic crime[] . . . because there is no
such generic crime.” Id. (first alteration and first omission in original) (quoting
§ 1101(a)(43)(P)). The Court thus surmised that “if the provision is to have any
meaning at all, the exception must refer to the particular circumstances in
which an offender committed the crime on a particular occasion.” Id. at 37-38.
Therefore, the Court concluded that some parts of the “aggravated felony”
definition refer to generic crimes and thus require the categorical approach


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                                   No. 17-60744
while other parts refer to the facts of the particular case and require the
circumstance-specific approach. See id. at 38.
      Turning to § 1101(a)(43)(M)(i) specifically, the Court determined that it
called for the circumstance-specific approach. The Court first noted that the
text of that subparagraph—specifically the use of “in which”—appeared to
refer to “the commission of the offense of conviction.” Id. at 38-39. It then
observed     that    applying     the   categorical        approach     “would     leave
[§ 1101(a)(43)(M)(i)] with little, if any, meaningful application.” Id. at 39. The
Court elaborated that it “found no widely applicable federal fraud statute that
contains a relevant monetary loss threshold.” Id. Further, the Court surveyed
state law and concluded that at the time Congress added the $10,000 threshold
to § 1101(a)(43)(M)(i), only eight states had fraud statues “in respect to which
[§ 1101(a)(43)(M)(i)]’s $10,000 threshold, as categorically interpreted, would
have full effect.” Id. at 40.
      Applying      the   same   analysis       to   § 1127(a)(2)(B)(i)’s   personal-use
exception, we conclude that the BIA reasonably interpreted the personal-use
exception to require a circumstance-specific approach. First, the language “a
single offense involving” suggests a circumstance-specific inquiry. Although,
as the Court recognized, “offense” could refer to either a generic crime or
specific conduct, see id. at 33-34, the use of “involving” makes the latter
interpretation more plausible. In this regard, “involving” functions similarly to
the use of “in which” in § 1101(a)(43)(M)(i) that swayed the Court toward the
circumstance-specific approach.
      But perhaps more tellingly, applying the categorical approach to the
personal-use exception would leave § 1227(a)(2)(B)(i) “with little, if any,
meaningful application.” Id. at 39. Congress first added the personal-use
exception to § 1227(a)(2)(B)(i)’s predecessor in 1990. See Immigration Act of
1990, Pub. L. No. 101-649, § 602, 104 Stat. 4978, 5080. At that time, the federal
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                                    No. 17-60744
simple-possession statute did not distinguish between possession of marijuana
as opposed to any other controlled substance, nor did it distinguish between
possession of greater or less than 30 grams. See 21 U.S.C. § 844(a) (1988).
Likewise, a majority of states and the District of Columbia followed the
Uniform Controlled Substances Act (“UCSA”) at the time. The 1990 version of
the UCSA’s simple-possession provision is at least somewhat congruent to the
personal-use exception in that it carves out a lower offense for simple
possession of fewer than 29 grams of marijuana. Unif. Controlled Substances
Act § 406(d) (Unif. Law Comm’n 1990). But the difference in the quantity
cutoff—as small as it is—means that no simple-possession conviction under
the UCSA would ever render an alien removable under the categorical
approach: possession of 29 or more grams of marijuana under the UCSA is a
categorically broader offense than possession of more than 30 grams of
marijuana. If Congress had intended for § 1227(a)(2)(B)(i) to track state law
such that the categorical approach would apply, one would expect Congress to
set the upper limit for the personal-use exception at 29 rather than 30 grams.
Accordingly, Congress must have intended the circumstance-specific approach
to apply.
       Cardoso de Flores relies solely on Moncrieffe v. Holder, 569 U.S. 184
(2013), to argue otherwise. Moncrieffe is inapposite. The issue in Moncrieffe
was     whether    a    Georgia    possession-with-intent-to-distribute        statute
categorically fit the federal generic definition of illicit trafficking in a controlled
substance. See 569 U.S. at 192. The Court held that the Georgia statute did
not meet the generic definition because it prohibited distributing small
amounts of marijuana without remuneration, which federal law explicitly
excluded from its drug-trafficking prohibition. See id. at 194-95. Thus, the
Court held that the Georgia statute was categorically broader than the generic
offense. See id. The Government nevertheless argued that the Court should
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                                 No. 17-60744
adopt an approach similar to the one it endorsed in Nijhawan in which it would
look to the specific circumstances to determine whether the no-remuneration
exception applied. See id. at 200. The Court rejected the invitation; in
distinguishing Nijhawan, it noted that the exception in that case came from
the INA itself whereas the no-remuneration exception was part of the generic
offense. See id. at 202. In this case, as in Nijhawan, that the personal-use
exception is located “in the INA proper suggests an intent to have the relevant
facts found in immigration proceedings.” Id.
      We therefore conclude that the BIA’s interpretation of § 1227(a)(2)(B)(i)’s
personal-use exception is reasonable, so we defer to it.
                                       B.
      Applying the BIA’s circumstance-specific approach, we conclude that
Cardoso de Flores’s conviction does not fall within the personal-use exception.
Cardoso de Flores argues that her conviction for possession of a controlled
substance under Tenn. Code. Ann. § 39-17-418 necessarily involved possession
of no more than 14.175 grams of marijuana for personal use. Ergo, she insists,
the BIA should have concluded that the personal-use exception applied without
looking to records from her arrest and prosecution.
      Cardoso de Flores misreads § 39-17-418. Section 39-17-418 states, in
relevant part:
            (a) It is an offense for a person to knowingly possess or
      casually exchange a controlled substance, unless the substance
      was obtained directly from, or pursuant to, a valid prescription or
      order of a practitioner while acting in the course of professional
      practice.
            (b) It is an offense for a person to distribute a small amount
      of marijuana not in excess of one-half ( ½ ) ounce (14.175 grams).


      The text and structure of § 39-17-418 show that subsection (a)
criminalizes simple possession and casual exchange of a controlled substance,

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                                        No. 17-60744
regardless of the specific type or quantity of that substance, while subsection
(b) criminalizes low-quantity marijuana distribution. This is especially
apparent when read in conjunction with § 39-17-417, which criminalizes more
serious controlled-substance offenses. Section 39-17-417(g)(1) makes it a felony
to distribute more than 14.175 grams of marijuana, thus addressing a more
serious distribution offense than § 39-17-418(b). But no part of § 39-17-
417(g)(1) addresses a simple-possession offense more serious than § 39-17-
418(a), suggesting that all simple possession offenses, regardless of quantity,
fall under § 39-17-418(a). 3
       Thus, to the extent Cardoso de Flores was convicted under subsection
(a), her conviction could have involved possession of a substance other than
marijuana or possession of greater than 30 grams of marijuana, either of which
would place the conviction beyond the personal-use exception’s reach. To the
extent she was convicted under subsection (b), her conviction would have
involved distribution, which would likewise place her conviction beyond the
personal-use exception’s reach. Therefore, the BIA appropriately looked to the
facts surrounding Cardoso de Flores’s arrest and conviction. Looking to those
facts, we conclude that substantial evidence supports the BIA’s findings that
Cardoso de Flores possessed 54.6 pounds of marijuana—substantially more
than the personal-use exception’s 30-gram threshold. Cardoso de Flores does
not argue otherwise.



       3 We also reject Cardoso de Flores’s suggestion that the rule of lenity should inform
our interpretation of § 39-17-418. Even assuming the rule of lenity could otherwise apply in
this situation, we perceive no ambiguity in this statute, especially not one severe enough to
warrant resort to the rule of lenity. See United States v. Suchowolski, 838 F.3d 530, 534 (5th
Cir. 2016) (“[T]he rule of lenity only applies if, after considering the text, structure, history,
and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the
[c]ourt must simply guess as to what Congress intended”. (alterations in original) (quoting
United States v. Castleman, 572 U.S. 157, 172-73 (2014))).

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                              No. 17-60744
                                   IV.
     For the reasons stated above, we DENY Cardoso de Flores’s petition for
review.




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