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

                                  No. 13-60326
                                                                          Fifth Circuit

                                                                        FILED
                                                                  October 1, 2015

RENE E. FLORES ESQUIVEL,                                           Lyle W. Cayce
                                                                        Clerk
                                            Petitioner,
v.

LORETTA E. LYNCH, U.S. ATTORNEY GENERAL,

                                            Respondent.



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


Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      In this appeal, we reject the Board of Immigration Appeals’s (BIA)
interpretation of the statute it administers and vacate the BIA decision under
review. We do so because the plain language of the relevant statute clearly
contradicts the interpretation that the BIA would give it.
      Under § 237 of the Immigration and Nationality Act (INA), aliens are
rendered removable by most drug convictions, except those that constitute “a
single offense involving possession for one’s own use of 30 grams or less of
marijuana.”    8 U.S.C. § 1227(a)(2)(B)(i).      The BIA has interpreted this
“personal-use exception” to cover only offenses that, in addition to constituting
“a single offense involving possession for one’s own use of 30 grams or less of
marijuana,” are also the “least serious” drug offenses under the law of the state
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                                   No. 13-60326
in which they were committed.           Here, the BIA relied solely on this
interpretation of the exception in holding the petitioner, Rene Flores Esquivel,
ineligible for cancellation of removal. See 8 U.S.C. § 1229b(d)(1). Because we
find no statutory basis for the additional requirement that the BIA’s
interpretation has tacked onto the personal-use exception, we GRANT Flores’s
petition for review, VACATE the BIA’s decision, and REMAND this matter to
the BIA for further proceedings.
                                        I.
      Flores is a native and citizen of Mexico. In 2001, when he was 16 years
old, he was admitted to the United States as a lawful permanent resident
(LPR). In 2003, he was convicted of the Class A misdemeanor of possession of
marijuana within 1,000 feet of his high school, a “drug-free zone” under Texas
law. Tex. Health & Safety Code Ann. §§ 481.121(b)(1), 481.134(f)(1). According
to the probable-cause affidavit, a drug dog assigned to sniff cars in the parking
lot of Flores’s high school alerted authorities to the possible presence of
narcotics in Flores’s car. The resulting search of the car yielded 4.6 grams of
marijuana. In 2011, Flores was again convicted of possession of marijuana, a
Class B misdemeanor. Id. § 481.121(b)(1).
      Flores traveled briefly to Mexico in 2012. When he sought reentry to the
United States, the U.S. Department of Homeland Security (DHS) discovered
his prior convictions. It then instituted removal proceedings against him,
alleging that he was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) because
of his 2011 conviction for possession of marijuana.
      In proceedings before the Immigration Judge (IJ), Flores conceded that
the 2011 conviction rendered him inadmissible. He sought relief, however, in
the form of cancellation of removal under 8 U.S.C. § 1229b(a). That statute
permits an LPR to apply to have the Attorney General cancel his removal, so
long as, among other things, the LPR “has resided in the United States
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                                       No. 13-60326
continuously for 7 years.” Id. § 1229b(a)(2). DHS challenged Flores’s eligibility
to apply for cancellation of removal, contending that, in the light of his 2003
conviction and § 1229b’s “stop-time rule,” Flores did not satisfy the continuous-
residence requirement. The stop-time rule, § 1229b(d)(1), provides that an
alien’s period of continuous residence is “deemed to end” when the alien has
committed an offense that renders him inadmissible under § 1182(a)(2) or
removable under 8 U.S.C. § 1227(a)(2) or (a)(4). Agreeing with DHS, the IJ
determined that Flores’s 2003 conviction rendered him inadmissible under
§ 1182(a)(2)(A)(i)(II), such that, under the stop-time rule, Flores’s period of
continuous residence ended in 2003. Accordingly, the IJ concluded that Flores
was ineligible for cancellation of removal, and ordered him removed to Mexico.
       Flores appealed to the BIA. In a single-member ruling, the BIA affirmed
the IJ, but on a different ground. The BIA held that Flores’s 2003 conviction
triggered the stop-time rule not because (as the IJ had held) it rendered him
inadmissible under § 1182(a)(2)(A)(i)(II), but because it rendered him
removable under § 1227(a)(2)(B)(i). Nonetheless, the result, according to the
BIA, was the same: under the stop-time rule, Flores’s 2003 conviction
terminated his period of continuous residence “long before he had accrued the
necessary 7 years” to be eligible to apply for cancellation of removal. 1



       1 Although it is unclear why the BIA declined to rest its affirmance of the IJ on the
ground that Flores’s 2003 conviction rendered him inadmissible under § 1182(a)(2)(A)(i)(II),
the BIA may have been influenced by Flores’s rationale for why it should not have done so—
that because Flores was not seeking admission in 2003, § 1182(a)(2)’s admissibility
requirements are irrelevant. Recently, a panel of this court rejected this rationale, holding
that an LPR who is not seeking admission may nonetheless have his period of continuous
residence stopped by an offense rendering him inadmissible under § 1182(a)(2). Calix v.
Lynch, 784 F.3d 1000, 1005–12 (5th Cir. 2015). Regardless, we may not consider whether,
under Calix, the IJ correctly determined that Flores was ineligible for cancellation of removal
under § 1182(a)(2)(A)(i)(II), because “we may usually only affirm the BIA on the basis of its
stated rationale.” Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010) (citing SEC
v. Chenery Corp., 318 U.S. 80, 88 (1943)); see also infra p. 4.
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                                  No. 13-60326
      Flores filed a motion to reopen with the BIA, which the BIA denied. He
then filed a petition for review with this court.
                                        II.
      Whether an individual is statutorily ineligible for cancellation of removal
because of § 1229b(d)(1)’s stop-time rule is a question of law that we review de
novo. Miresles-Zuniga v. Holder, 743 F.3d 110, 112 (5th Cir. 2014). When, as
here, the BIA’s decision agrees “in certain respects” with the IJ’s decision but
does not rely on that decision, “our review is confined to the BIA’s analysis and
reasoning.” Enriquez-Gutierrez, 612 F.3d at 407.
                                       III.
                                        A.
      The sole question before us is whether the BIA erred in determining that
Flores’s 2003 conviction for possession of marijuana in a drug-free zone
rendered him removable under § 1227(a)(2)(B)(i).              Section 1227(a)(2)(B)(i)
provides as follows:
      Any alien who at any time after admission has been convicted of a
      violation of . . . any law or regulation of a State, the United States,
      or a foreign country relating to a controlled substance . . . other
      than a single offense involving possession for one’s own use of 30
      grams or less of marijuana, is deportable.
Flores acknowledges that his conviction constitutes an offense “relating to a
controlled substance.” He argues, however, that the conviction nonetheless
does not render him ineligible for cancellation of removal because of the
“personal-use” exception of § 1227(a)(2)(B)(i).
      Under the personal-use exception, an alien is not rendered removable by
“a single offense involving possession for one’s own use of 30 grams or less of
marijuana.” § 1227(a)(2)(B)(i). According to its plain language, then, the
exception applies if four elements are met—the offense must be (1) a single
offense; (2) involving possession for one’s own use; (3) of 30 grams or less; (4)

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                                         No. 13-60326
of marijuana. See In re Davey, 26 I. & N. Dec. 37, 39 (B.I.A. 2012) (“[The
personal-use exception] refers not to a common generic crime but rather to a
specific type of conduct (possession for one’s own use) committed on a specific
number of occasions (a ‘single’ offense) and involving a specific quantity (30
grams or less) of a specific substance (marijuana).”).                      Here, Flores has
presented evidence—and the government has not disputed—that these four
elements are met: Flores’s 2003 conviction was his first; it was for possession
for his own use, not for distribution; and he possessed 4.6 grams of marijuana.
Thus, we can reach no conclusion other than that the exception applies. 2
                                                B.
       In concluding to the contrary, the BIA’s decision relied exclusively on the
BIA’s interpretation of the personal-use exception, which it first articulated in
Matter of Moncada-Servellon, 24 I. & N. Dec. 62 (B.I.A. 2007); see also Davey,
26 I. & N. Dec. at 40 n.3. There, an LPR who had been convicted of possession
of marijuana while in prison in violation of a California statute asserted that
he was eligible for cancellation of removal under the personal-use exception.
Moncada-Servellon, 24 I. & N. Dec. at 63. The BIA disagreed. According to


       2  As explained in the text, the BIA has held that, because the personal-use exception
“refers not to a common generic crime but rather to a specific type of conduct,” we should
apply a “‘circumstance-specific’ inquiry,” Davey, 26 I. & N. Dec. at 39, determining whether
an alien’s offense satisfies the exception by “look[ing] to the facts and circumstances
underlying [the] conviction.” Nijhawan v. Holder, 557 U.S. 29, 34 (2009); see also Mellouli v.
Holder, 719 F.3d 995, 1001–02 (8th Cir. 2013) (applying the circumstance-specific approach
to the personal-use exception), rev’d on other grounds sub nom. Mellouli v. Lynch, 135 S. Ct.
1980 (2015); Martel-Martinez v. Holder, 537 F. App’x 757, 758 (9th Cir. 2013) (same); Grant
v. Att’y Gen. of the U.S., 492 F. App’x 286, 288–89 (3d Cir. 2012) (same). Here, neither party
argues that Davey is incorrect, such that we instead should determine whether the personal-
use exception applies using the “categorical approach” outlined by the Supreme Court in
Taylor v. United States, 495 U.S. 575 (1990). Even under the categorical approach, however,
Flores’s 2003 conviction would still satisfy the personal-use exception because no element of
the statute of conviction restricts its application to possession of at least 30 grams of
marijuana. See Tex. Health & Safety Code § 481.134(f)(1) (making “an offense otherwise
punishable under Section . . . 481.121(b)(1) . . . a Class A misdemeanor if it . . . was committed”
near a school); id. § 481.121(b)(1) (prohibiting possession of “two ounces or less” of marijuana).
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                                  No. 13-60326
the BIA, the personal-use exception encompasses “the least serious drug
violations only—that is, those involving the simple possession of small amounts
of marijuana.” Id. at 65. In other words, the BIA read the statutory phrase
“possession for one’s own use,” § 1227(a)(2)(B)(i), to be “interchangeable” with
“the concept[] of ‘simple possession’.” Id. at 67. Thus, in the BIA’s view, “[t]he
personal-use exception is not intended or understood by Congress to apply to
offenses that are significantly more serious than simple possession by virtue of
other statutory elements that greatly increase their severity.” Id. at 65.   And
because the LPR’s offense of possessing marijuana in prison was “significantly
more serious than simple possession,” the BIA—applying its newly minted
interpretation of the personal-use exception—held him ineligible for
cancellation of removal. Id. at 64–67.
      Citing Moncada-Servellon, the BIA here concluded that Flores’s
conviction for possession of marijuana in a school zone is, like the conviction
for possession of marijuana in prison at issue in Moncada-Servellon,
“significantly more serious than simple possession” because it is treated as
such under Texas law. Accordingly, the BIA held that Flores is ineligible for
cancellation of removal.
                                         C.
      We do not see it quite the same way. We feel compelled to apply the
plain language of the personal-use exception, not the gloss put upon it by the
BIA in Moncada-Servellon. To be sure, precedential BIA decisions issued by a
three-member panel—like the decision in Moncada-Servellon—may be entitled
to Chevron deference. See Dhuka v. Holder, 716 F.3d 149, 154–56 (5th Cir.
2013). But “no deference,” under Chevron or otherwise, “is due to agency
interpretations at odds with the plain language of the statute itself.” Pub.
Emps. Ret. Sys. v. Betts, 492 U.S. 158, 171 (1989); see also Texas v. United
States, 497 F.3d 491, 501 (5th Cir. 2007) (“Judicial deference is due only ‘if the
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                                  No. 13-60326
agency interpretation is not in conflict with the plain language of the statute.’”
(quoting Nat’l R.R. Passenger Corp. v. Bos. & Me. Corp., 503 U.S. 407, 417
(1992))).   For several reasons, we conclude that Moncada-Servellon’s
interpretation of the personal-use exception is contrary to the plain meaning
of the statute, and thus is not entitled to Chevron deference.
      First and most importantly, Moncada-Servellon’s interpretation reads
into the text of the personal-use exception a requirement that simply isn’t
there. See Bates v. United States, 522 U.S. 23, 29 (1997) (“[W]e ordinarily resist
reading words or elements into a statute that do not appear on its face.”). As
noted, under Moncada-Servellon, an offense does not fall into the personal-use
exception if it is “significantly more serious than simple possession.” 24 I. &
N. Dec. at 65.   But on its face, the personal-use exception says nothing about
the severity of the offense in comparison to “simple possession.” Instead, it
says only that an offense falls into the personal-use exception if it is “a single
offense involving possession for one’s own use of 30 grams or less of marijuana.”
§ 1227(a)(2)(B)(i). Interpreters “must presume that a legislature says in a
statute what it means and means in a statute what it says there.” Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253–54 (1992). Here, Congress has said in the
statute that aliens are not rendered removable by “single offense[s] involving
possession for one’s own use of 30 grams or less of marijuana.”
§ 1227(a)(2)(B)(i).   The BIA’s preferred caveat—basically, “unless that
possession occurs in a prison or school zone”—is nowhere to be found.
      Second,    Moncada-Servellon’s     interpretation    runs   afoul   of   the
“elementary canon of construction that when Congress uses different terms,
‘each term is to have a particular, nonsuperfluous meaning.’” Silva-Trevino v.
Holder, 742 F.3d 197, 203 (5th Cir. 2014) (quoting Bailey v. United States, 516
U.S. 137, 146 (1995)). In at least five different provisions of the INA, Congress
accorded special treatment to aliens whose drug convictions are for “a single
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                                     No. 13-60326
offense of simple possession of 30 grams or less of marijuana.”             8 U.S.C.
§ 1254a(c)(2)(A)(iii)(II) (emphasis added); see also id. § 1160(c)(2)(B)(ii)(III); id.
§ 1182(h); id. § 1255(h)(2)(B); id. § 1255a(d)(2)(B)(ii)(II).       By contrast, in
§ 1227(a)(2)(B)(i), Congress spoke not of “simple possession” but of “possession
for one’s own use.” The BIA’s interpretation of § 1227(a)(2)(B)(i) equates the
two terms, taking Congress to have meant “simple possession” when it said
“possession for one’s own use.” Moncada-Servellon, 24 I. & N. Dec. at 67 (“[T]he
concepts of ‘simple possession’ and ‘possession . . . for one’s own use’ were
understood by Congress to be interchangeable . . . . ”). But the rest of the INA
demonstrates that when Congress meant to say “simple possession,” it knew
how to do so. Thus, Congress’s use of the term “possession for one’s own use”
suggests that it meant just that—possession of marijuana for the alien’s own
use, without regard to whether the possession takes place in a prison, a school,
or elsewhere.
      Finally,    the    practical     consequences      of    Moncada-Servellon’s
interpretation indicate it a most unlikely reflection of congressional intent.
Again: under Moncada-Servellon the determinative question with respect to
the personal-use exception is whether the alien’s offense of conviction was
“significantly more serious than simple possession by virtue of other statutory
elements that greatly increase [its] severity.”          24 I. & N. Dec. at 65.
Accordingly, because Flores possessed marijuana in a school zone, and because
Texas law treats possession of marijuana in a school zone as more serious than
possession of marijuana elsewhere, see Tex. Health & Safety Code Ann.
§ 481.134(f)(1), the BIA concluded that Flores is not entitled to the personal-
use exception. This interpretation of § 1227(a)(2)(B)(i) produces anomalous
and arbitrary consequences, however, because some states do not distinguish
between possession in a school zone and possession generally. See, e.g., Miss.
Code Ann. § 41-29-142(1) (prescribing enhanced penalties for a list of drug
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                                  No. 13-60326
crimes, but not for possession, if the crime occurs within 1,500 feet of a school).
Had Flores possessed marijuana in a school zone in one of these states, there
would be no “statutory elements that greatly increase the[] severity of the
offense” relative to simple possession. Moncada-Servellon, 24 I. & N. Dec. at
65. Thus, he presumably would be entitled to the personal-use exception—
even though his conduct for § 1227(a)(2)(B)(i) purposes was exactly the same
(i.e., in both situations, he “possess[ed] for [his] own use . . . 30 grams or less
of marijuana”). “Because [this] makes scant sense, the BIA’s interpretation . .
. is owed no deference under” Chevron. Mellouli v. Lynch, 135 S. Ct. 1980, 1989
(2015); cf. Lopez v. Gonzales, 549 U.S. 47, 59 (2006) (“[I]t is just not plausible
that Congress meant to authorize a State to overrule its judgment about the
consequences of federal offenses to which its immigration law expressly
refers.”).
                                        D.
       The BIA in Moncada-Servellon offered two justifications for its reading
of § 1227(a)(2)(B)(i), but neither is persuasive.
       First, citing the five provisions of the INA that invoke the concept of
“simple possession,” see supra pp. 7–8, the BIA reasoned that, in order to
“harmonize . . . disparate statutory sections into a complementary whole,” the
personal-use exception must be read to encompass only simple possession.
Moncada-Servellon, 24 I. & N. Dec. at 65–66. As explained above, however,
this reasoning gets it exactly backward. According to an “elementary canon”
of statutory interpretation, Congress’s use of the term “simple possession” in
some provisions of the statute—but not in the personal-use exception—
suggests, consonant with ordinary usage, that “possession for one’s own use”




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                                       No. 13-60326
differs from “simple possession,” not that the two terms are the same. See
Silva-Trevino, 742 F.3d at 203. 3
       Second, the BIA pointed to the legislative history of § 1227(a)(2)(B)(i),
which, in its view, shows that Congress intended the personal-use exception to
cover only “simple possession.” Moncada-Servellon, 24 I. & N. Dec. at 66–67.
But it is well settled that “[l]egislative history, for those who take it into
account, is meant to clear up ambiguity, not create it.” Milner v. Dep’t of the
Navy, 562 U.S. 562, 574 (2011); see also Miss. Poultry Ass’n v. Madigan, 992
F.2d 1359, 1364 n.28 (5th Cir. 1993) (“[W]e do not consider the legislative
history of a statute when construing the plain language . . . ; we do so after—
but only after—a statute is first found to be ambiguous or silent.”) Again,
§ 1227(a)(2)(B)(i) unambiguously provides that so long as an offense is (1) a
single offense; (2) involving possession for one’s own use; (3) of 30 grams or
less; (4) of marijuana, then it does not render an alien removable. Legislative
history cannot amend this unambiguous language to add a more-serious-than-
simple-possession exception. 4



       3 In any event, the BIA's “harmoniz[ation]” would itself be disharmonious in some
respects. For example, one of the INA provisions that the BIA in Moncada-Servellon sought
to “harmonize” § 1227(a)(2)(B)(i) with was § 1182(h), which under some circumstances gives
the Attorney General discretion to waive an alien's inadmissibility “insofar as it relates to a
single offense of simple possession of 30 grams or less of marijuana.” But as the Supreme
Court has recognized, “the statutory bases for excluding and deporting aliens have always
varied,” Judulang v. Holder, 132 S. Ct. 476, 479 (2011); so it is little surprise that the
possession exceptions to mandatory exclusion and deportation should vary also.
       4  Even if we were to look to the legislative history the BIA cited, it is far from
conclusive. The BIA cited a single committee report that explains the rationale behind
§ 1227(a)(2)(B)(i) as being to give the Attorney General discretion to cancel removal “as it
relates to simple possession of marihuana” or when removal “is based solely on possession of
small amounts of marihuana for one’s own use.” Moncada-Servellon, 24 I. & N. Dec. at 66–
67 (citing H.R. Rep. No. 97-264, at 12 (1981)). At no point does the report say that “possession
for one’s own use” means “simple possession,” however, and “[w]ith no precise legislative
history to rely on, we should generally not stray from the language in an attempt to
implement ‘legislative intent.’” In re Miller, 570 F.3d 633, 639 (5th Cir. 2009).
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                                    No. 13-60326
                                    *      *      *
      In sum, Chevron deference “‘is premised on the theory that a statute’s
ambiguity constitutes an implicit delegation from Congress to the agency to fill
in the statutory gaps.’” Calix v. Lynch, 784 F.3d 1000, 1005 (5th Cir. 2015)
(quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)).
In § 1227(a)(2)(B)(i)’s personal-use exception, however, there is simply no “gap”
for the BIA to fill. Because Flores’s 2003 conviction satisfies the personal-use
exception as Congress wrote it, and because the BIA’s decision under review
identified no other ground for holding him ineligible for cancellation of
removal, we GRANT Flores’s petition for review, VACATE the BIA’s decision,
and REMAND to the BIA for further proceedings consistent with this opinion. 5




      5  Our disposition makes it unnecessary to consider Flores’s argument that the BIA
erred in denying his motion to reopen.
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                                         No. 13-60326
OWEN, Circuit Judge, dissenting:
       With great respect, the majority opinion adopts a perverse construction
of 8 U.S.C. § 1227(a)(2)(B)(i), and in particular, fails to give the words “other
than” their natural and commonly-understood meaning. Congress chose to
draft broadly when it said in this section of the Immigration and Nationality
Act:
             Any alien who at any time after admission has been
       convicted of a violation of . . . any law or regulation of a State, the
       United States, or a foreign country relating to a controlled
       substance . . . other than a single offense involving possession for
       one’s own use of 30 grams or less of marijuana, is deportable. 1

       This language means that our analysis of whether Flores Esquivel was
deportable begins with the universe of all controlled substance offenses. The
“other than” exception that carves out the possession of marijuana for personal
use from this universe is narrowly drawn. If a controlled substance offense is
an offense “other than” “possession for one’s own use of 30 grams or less of
marijuana,” then it is a deportable offense. Flores Esquivel was convicted
under Texas law for possessing 4.6 grams (less than one ounce) of marijuana,
but there was another element to his conviction.                      He was convicted of
knowingly or intentionally possessing marijuana in a school zone. 2                     This
element of Esquivel’s conviction removes it from the exception in
§ 1227(a)(2)(B)(i), regardless of whether we apply a “circumstance-specific”




       1   8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).
       2   TEX. HEALTH & SAFETY CODE ANN. §§ 481.121(b)(1), 481.134(f)(1) (West 2003).
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                                        No. 13-60326
approach 3 or a “categorical” approach 4 in construing and applying
§ 1227(a)(2)(B)(i).
      The possession of marijuana in a drug-free zone—in this case, a school
zone—is an offense that “involv[es]” something “other than” the mere
possession of marijuana for one’s own use.                  The offense of possession of
marijuana in a school zone focuses on potential or possible harms beyond those
emanating from the offense of possession for one’s own use. Criminalizing
possession of marijuana in a school zone reflects concerns for potential harm
beyond harm to the individual possessing the drug. Those concerns include,
but certainly are not limited to, the apprehension that marijuana may be
shared with a student, thereby adversely affecting or influencing someone
other than the original possessor of the marijuana; that a student who is in
possession may use the drug during or just before the school day to the
detriment or disruption of the educational process; that a person in possession
of marijuana on school property will smoke or ingest the drug while still on
school property and then drive under the influence in a school zone; or that
someone in possession of marijuana and under the influence will drive through
a school zone.
      In this case, Flores Esquivel admitted to smoking marijuana in the
morning before attending class. He was escorted from class after a drug-
sniffing canine detected marijuana in his car at 10:15 a.m. He consented to a
search of his vehicle and told the principal that marijuana was present. The
officer who conducted the search found a “joint” and several “roaches” in the
ashtray and a plastic bag containing 3.1 grams of marijuana.


      3   See Nijhawan v. Holder, 557 U.S. 29, 34 (2009).
      4   See Taylor v. United States, 495 U.S. 575, 577 (1990).
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                                        No. 13-60326
      If 4.6 grams of marijuana had been found in Flores Esquivel’s home,
clearly, he would not be deportable under § 1227(a)(2)(B)(i). But when he took
the additional step of bringing the marijuana into a drug-free zone, he
committed an offense that differs from the offense of possession for one’s
personal use. The BIA correctly recognized this distinction.
      In an earlier decision, the BIA also correctly recognized that possession
of less than 30 grams of marijuana in a prison or other correctional setting is
an offense that is outside the narrow exception for possession for one’s own use
in § 1227(a)(2)(B)(i). 5 The BIA recognized that “the statute under which the
alien was convicted has a formal element requiring that the possession of
marijuana be in a prison or other correctional setting.” 6 The BIA further
reasoned that “the respondent was convicted of possessing marijuana in
prison, an offense that is significantly more serious than ‘simple possession’
because of the inherent potential for violence and the threat of disorder that
attends the presence of drugs in a correctional setting.” 7 In the case presently
before us, the Texas statute under which Flores Esquivel was convicted had as
a formal element the requirement that the possession of the marijuana be in a
school zone. As already discussed, the rationale for creating such an offense
and authorizing punishment more severe than that for mere possession of
marijuana for personal use is the potential for harm to others and for disorder
that bringing marijuana onto a school campus creates.
      The majority opinion’s holding requires future panels of our court to
conclude that possession of less than 30 grams of marijuana in a prison is also



      5   In re Moncada-Servellon, 24 I. & N. Dec. 62, 65 (B.I.A. 2007).
      6   Id. at 64 (emphasis added).
      7   Id. at 65.
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                                 No. 13-60326
within the exclusion in § 1227(a)(2)(B)(i). The test, the majority opinion says,
is simply this:
             According to its plain language, then, the exception applies
      if four elements are met—the offense must be (1) a single offense;
      (2) involving possession for one’s own use; (3) of 30 grams or less;
      (4) of marijuana. See In re Davey, 26 I. & N. Dec. 37, 39 (B.I.A.
      2012) (“[The personal-use exception] refers not to a common
      generic crime but rather to a specific type of conduct (possession
      for one’s own use) committed on a specific number of occasions (a
      ‘single’ offense) and involving a specific quantity (30 grams or less)
      of a specific substance (marijuana).”). Here, Flores has presented
      evidence—and the government has not disputed—that these four
      elements are met: Flores’s 2003 conviction was his first; it was for
      possession for his own use, not for distribution; and he possessed
      4.6 grams of marijuana. Thus, we can reach no conclusion other
      than that the exception applies. 8


      This same analysis would apply in a case in which a person had been
convicted of possessing marijuana in prison. If the offense has these four
elements, it matters not that the offense also has one or more other elements,
the majority opinion says. But such an analysis achieves the opposite of what
§ 1227(a)(2)(B)(i) directs. The majority opinion gives no effect to the words
“other than” in § 1227(a)(2)(B)(i). The offense of possession of marijuana in a
prison (or a school zone) has an element “other than” possession of less than 30
grams for one’s own use.
      Other aspects of the majority opinion’s reasoning are suspect.           The
opinion states that the BIA (and my) interpretation of the personal use
exception “produces anomalous and arbitrary consequences . . . because some
states do not distinguish between possession in a school zone and possession



      8   Ante at 5.
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                                         No. 13-60326
generally.” 9 Does this mean that unless all fifty states enact a prohibition of
possession of marijuana in a prison, Congress intended for such an offense to
come within the personal use exclusion? If all fifty states were to distinguish
between possession generally and possession in a prison, would the meaning
of the personal use exception change? Whether some states have or have not
enacted an offense that has elements in addition to possession of less than 30
grams of marijuana does not bear on how we are to interpret the language that
Congress chose.             Congress said that all offenses “relating to a controlled
substance” result in an alien being deportable unless the offense is one “other
than” a conviction for “possession for one’s own use of 30 grams or less of
marijuana.” Possession of marijuana in a school zone or in a prison is an
offense “other than” possession for one’s own use because those offenses have
an element that possession for one’s own use does not have.
      Courts routinely recognize that criminal statutes may largely overlap,
but if an offense has one element that is in addition to the elements of an
otherwise identical statute, then there are two offenses. For example, battery
can be defined as an offensive touching. 10 But if the battery is accompanied by
the brandishment of a deadly weapon, the offense may be something other than
simple battery and termed aggravated battery with a correspondingly greater
penalty. 11
      I also note that although the Supreme Court has not addressed the issue
in the present case, there is an indication that the Court generally agrees with
the BIA’s view of the personal possession of marijuana exception in



      9   Ante at 9-10.
      10   See WAYNE R. LAFAVE, CRIMINAL LAW § 16.2(a) (5th ed. 2010).
      11   Id. § 16.2(d).
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                                        No. 13-60326
§ 1227(a)(2)(B)(i). In Padilla v. Kentucky, the Court explained that this section
“addresses not some broad classification of crimes but specifically commands
removal for all controlled substances convictions except for the most trivial of
marijuana possession offenses.” 12 Possession of marijuana in a school zone or
in a prison are not trivial offenses.
      One may ask, what difference does the majority opinion’s holding today
make in light of our court’s decision in Calix v. Lynch? 13 We held in Calix that
the stop-time rule considers whether an alien would be inadmissible under
§ 1182(a)(2), or would be removable under § 1227(a)(2). We concluded that
because the alien was inadmissible under § 1182(a)(2), due to a conviction for
possession of marijuana, the stop-time rule applied. 14              It was accordingly
irrelevant whether he was also removable under § 1227(a)(2). Presumably, in
the present case, on remand to the BIA, it will be determined that Flores
Esquivel would be inadmissible under § 1182(a)(2) because of his conviction for
possession of marijuana, and Flores Esquivel will be found removable because
of the application of the stop-time rule. Nevertheless, today’s decision matters
because it has authoritatively construed § 1227(a)(2)(B)(i). In a case in which
only removability is at issue, and not the stop-time rule, today’s decision will
be controlling in this Circuit.
                                            *        *   *
      I would deny the petition, and I accordingly dissent.




      12   559 U.S. 356, 368 (2010).
      13   784 F.3d 1000 (5th Cir. 2015).
      14   Id. at 1011-12.
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