Manuel Lopez Ventura v. Jefferson Sessions, III
907 F.3d 306
5th Cir.2018Background
- Manuel Lopez Ventura, a Dominican native and U.S. lawful permanent resident, pleaded guilty in Louisiana to possession (charged under a statute covering controlled substances) after possessing AB-CHMINACA and cigarillos.
- At the time of his possession, AB-CHMINACA was not on the federal controlled-substance schedules; it was added to the schedules before his conviction.
- DHS charged Lopez Ventura as inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) because his state conviction related to a federally controlled substance.
- Lopez Ventura argued the INA should not apply because the substance was not federally controlled at the time of his offense (presumption against retroactivity).
- The IJ and then the BIA found him inadmissible, relying on the date of conviction as the relevant date and concluding the substance was controlled then; the BIA also ruled Lopez Ventura waived a retroactivity challenge.
- The Fifth Circuit granted review, held applying § 1182(a)(2)(A)(i)(II) to Lopez Ventura would be impermissibly retroactive, reversed the BIA, and remanded for the BIA to determine whether the conviction was for marihuana or AB-CHMINACA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying § 1182(a)(2)(A)(i)(II) to conduct that occurred before a substance was scheduled is impermissibly retroactive | Lopez Ventura: statute attaches new legal consequences to past conduct (possession when substance was unscheduled); presumption against retroactivity bars application | Government: statute focuses on convictions; relevant date is conviction (not commission); categorical approach and policy support non-retroactive application | Court: Application is retroactive because it attaches a new disability to past conduct; presumption not overcome; reversal granted |
| Whether Lopez Ventura waived the retroactivity challenge by not invoking the presumption below | Lopez Ventura: consistently argued statute should not apply where substance was unscheduled at commission—presumption embedded in his argument | Government: he failed to preserve the retroactivity claim before the BIA/IJ | Court: No waiver—argument was presented sufficiently; BIA addressed and rejected the claim so review is proper |
| Whether the relevant date is date of conviction or date of commission for determining if the substance was federally controlled | Lopez Ventura: timing of the underlying conduct controls for retroactivity analysis (date of commission) | Government: INA and categorical approach focus on convictions, so conviction date is controlling | Court: For retroactivity analysis, timing of the defendant’s conduct controls; conviction-date focus does not avoid retroactivity here |
| Whether remand is required to determine precisely which substance the conviction concerned (marihuana vs AB-CHMINACA) | Lopez Ventura: BIA never resolved whether conviction was for marihuana vs AB-CHMINACA; that affects admissibility and potential § 1182(h) relief | Government: BIA concluded substance was controlled at conviction and treated issue as resolved | Court: Remand ordered for BIA to determine which substance the conviction actually involved |
Key Cases Cited
- Landgraf v. USI Film Prods., 511 U.S. 244 (presumption against retroactivity; two-step retroactivity inquiry)
- Vartelas v. Holder, 566 U.S. 257 (retroactivity analysis; new legal consequences attach to past convictions)
- St. Cyr v. INS, 533 U.S. 289 (demanding standard for clear congressional intent to apply retroactively)
- Moncrieffe v. Holder, 569 U.S. 184 (categorical approach: inquiry focuses on convictions/elements, not facts)
- Nijhawan v. Holder, 557 U.S. 29 (categorical approach is not absolute; statutory text may require deviation)