                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  January 26, 2011
                              FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    RICARDO OLIVAN-DUENAS,

                Petitioner,

    v.                                                   No. 10-9517
                                                     (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before KELLY and BALDOCK, Circuit Judges, BRORBY, Senior
Circuit Judge.


         Petitioner Ricardo Olivan-Duenas, a native of Mexico, challenges the

Board of Immigration Appeals’ (BIA’s) decision affirming the ruling of an

immigration judge (IJ) that he is ineligible for adjustment of status and not

entitled to a waiver of inadmissibility. We deny the petition.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   B ACKGROUND

      In 1991, when Olivan-Duenas was an infant, he and his mother entered this

country illegally. In 2008, at the age of eighteen, he was arrested and charged in

Utah County, Utah, with possessing less than one ounce of marijuana within

1,000 feet of a church, a drug-free zone. See Utah Code Ann. § 58-37-8(2)(a)(i)

& (4)(a)(ix). The charge was accompanied by a street-gang enhancement. See id.

§ 76-3-203.1. Ultimately, the state dismissed the gang enhancement, and

Olivan-Duenas pleaded guilty to possession in a drug-free zone. Because this was

Olivan-Duenas’s first possession conviction, it would ordinarily have been only a

class B misdemeanor. See Utah Code Ann. § 58-37-8(2)(d). But since the

possession occurred within a drug-free zone, the conviction was elevated to a

class A misdemeanor. See Utah Code Ann. § 58-37-8(4)(c). The state court

sentenced Olivan-Duenas to 365 days in jail, but suspended 320 of those days,

and placed him on probation.

      Two months after his conviction, the U.S. Department of Homeland

Security charged Olivan-Duenas with being a removable alien. He conceded

removability, but sought adjustment of status to lawful permanent resident. An IJ

held a hearing and concluded that Olivan-Duenas’s status could not be adjusted

because of his conviction. The IJ noted that 8 U.S.C. § 1182(h) waives the

conviction “insofar as it relates to a single offense of simple possession of 30

grams [1.05821 ounces] or less of marijuana” if certain other conditions, such as

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extreme hardship, exist. But the IJ determined that waiver was precluded by In re

Martinez-Zapata, 24 I. & N. Dec. 424, 431 (BIA 2007), where the BIA held that a

Texas conviction for possessing marijuana in a drug-free zone was not “simple

possession” that would qualify for a § 1182(h) waiver. Consequently, the IJ

ordered Olivan-Duenas removed to Mexico.

      The BIA affirmed, holding that In re Martinez-Zapata governed.

                                   D ISCUSSION

      When, as in this case, “a single member of the BIA [has] issue[d] a brief

order affirming an IJ’s decision, [we] review[ ] both the decision of the BIA and

any parts of the IJ’s decision relied on by the BIA in reaching its conclusion.”

Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir. 2010) (quotation omitted).

“We review the BIA’s legal determinations de novo and its findings of fact for

substantial evidence.” Id.

      As noted above, the BIA has determined that possessing marijuana in a

drug-free zone does not relate to “simple possession . . . of marijuana,” 8 U.S.C.

§ 1182(h), and therefore, it is not a waivable offense. In re Martinez-Zapata,

24 I. & N. Dec. at 431. The BIA reasoned that because the drug-free-zone

enhancement had to be decided by a jury beyond a reasonable doubt, it was the

“functional equivalent” of an element of the possession crime. Id. at 430. Thus,

with that added element, the crime was no longer “simple possession.” Id. at 431.




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      Under Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837

(1984), we must defer to the BIA’s determination if “(1) the statute is ambiguous

or silent as to the issue at hand and (2) the agency’s interpretation is neither

arbitrary, capricious, nor manifestly contrary to the statute.” Carpio v. Holder,

592 F.3d 1091, 1096 (10th Cir. 2010) (quotation and alteration omitted).

“Indeed, judicial deference to the Executive Branch is especially appropriate in

the immigration context where officials exercise especially sensitive political

functions that implicate questions of foreign relations.” Niang v. Gonzales,

422 F.3d 1187, 1196-97 (10th Cir. 2005) (quotation omitted).

      Olivan-Duenas appears to concede that the statutory language waiving a

conviction that “relates to a single offense of simple possession of . . . marijuana”

is ambiguous or silent when it comes to a conviction for possessing marijuana in a

drug-free zone. In any event, as the waiver statute does not define the term

“simple possession” or otherwise indicate whether possession in a drug-free zone

constitutes “simple possession,” we conclude that the meaning of the term was

open to interpretation by the BIA. Consequently, Olivan-Duenas must show that

the interpretation is arbitrary, capricious, or manifestly contrary to the statute.

See Carpio, 592 F.3d at 1096.

      Olivan-Duenas contends that the statutory language is much broader than

the BIA recognizes because the conviction must only “relate” to simple

possession, it does not have be simple possession. He asserts that the Supreme

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Court’s broad interpretation of the words “relating to” in Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 383 (1992), precludes the BIA from employing a

more narrow definition. But Morales involved the Airline Deregulation Act of

1978 and its preemptive effect on state consumer-protection laws. It is, therefore,

inapposite in the immigration context. 1

         We conclude that the BIA’s reading of the waiver statute, 8 U.S.C.

§ 1182(h), to not include convictions for marijuana possession in a drug-free zone

is a reasonable and permissible interpretation of the statute. Such a conviction

could logically be viewed as not relating to “simple possession” on the basis that

the location of the crime is a sufficiently distinguishing or aggravating criminal

element. See Black’s Law Dictionary 1509 (9th ed. 2009) (defining “simple” in

the criminal-law context as “not accompanied by aggravating circumstances”).

Indeed, the Utah courts view the drug-free-zone fact as an element that enhances

the underlying offense and that must be proved beyond a reasonable doubt if not

admitted by the defendant. State v. Davis, 155 P.3d 909, 912 (Utah Ct. App.

2007).

         Olivan-Duenas suggests that the BIA recently rejected In re

Martinez-Zapata by concluding that a conviction for possessing drug


1
      Even when a Supreme Court decision conflicts with an agency’s subsequent
decision over the meaning of the same statute, we must still defer to the agency’s
decision, so long as it is reasonable and constitutional. Hernandez-Carrera v.
Carlson, 547 F.3d 1237, 1242 (10th Cir. 2008).

                                           -5-
paraphernalia can relate to a single offense of simple marijuana possession for

purposes of a § 1182(h) waiver. See In re Espinoza, 25 I. & N. Dec. 118 (BIA

2009). In fact, the opposite is true. While the BIA did observe that the § 1182(h)

language would not eliminate a waiver for offenses that are “a mere adjunct to”

simple possession, like certain instances of possessing drug paraphernalia, id. at

123, a waiver would be unavailable if the crime’s “elements . . . make it

substantially more serious than ‘simple possession,’” id. at 125. “For example,

possessing marijuana in a prison or near a school [i.e., drug-free zones] may

relate to marijuana possession, but such offenses do not relate to simple

possession because they are inherently more serious than the basic crime.” Id. at

125. Thus, In re Espinoza completely supports In re Martinez-Zapata’s holding

that possessing marijuana in a drug-free zone does not relate to simple possession

of marijuana. 2

      Olivan-Duenas also contends that the BIA’s narrow interpretation of the

§ 1182(h) waiver language is inconsistent with its interpretation of similar

language in statutes like 8 U.S.C. § 1227(a)(2)(A)(iii), which renders aggravated


2
       Olivan-Duenas also claims that In re Martinez-Zapata is undermined by
Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008). But there, the
Seventh Circuit simply held that possessing drug paraphernalia can relate to
marijuana possession. Id. at 392-93. The court did not purport to address when a
criminal offense relates to simple possession, other than to surmise that
distribution offenses would not. Further, the BIA’s reasonable interpretation of
unclear or ambiguous immigration statutes trumps contrary judicial
interpretations. See Chevron, 467 U.S. at 845.

                                         -6-
felons removable. He states that the BIA “is willing to give an expansive

definition to the phrase ‘related to’ . . . when it means bringing more crimes under

the ambit of the [removability statutes],” but it then contracts the reach of the

“related to” language when it comes to determining which crimes qualify for a

waiver. Aplt. Br. at 33. But far from exhibiting inconsistency, the BIA’s

approach uniformly treats criminality as a presumptive disqualifier under the

immigration statutes.

       The BIA’s interpretation of § 1182(h)’s waiver for “a single offense of

simple possession of . . . marijuana” as not including drug-free-zone-enhanced

possession crimes is not arbitrary, capricious, or manifestly contrary to the

statute.

                                    C ONCLUSION

       The petition for review is DENIED.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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