915 F.3d 379
5th Cir.2019Background
- Maria Sylvia Cardoso de Flores, a lawful permanent resident, pleaded guilty in Tennessee to possession of a controlled substance under Tenn. Code Ann. § 39-17-418 after being arrested with 54.6 pounds of marijuana.
- DHS issued a notice to appear charging removability under INA § 1227(a)(2)(B)(i) (conviction relating to a controlled substance, except a single offense involving possession for one’s own use of 30 grams or less of marijuana).
- The IJ found the arrest/conviction involved 54.6 pounds and ordered removal; the BIA affirmed after applying a circumstance-specific inquiry to the personal-use exception.
- Cardoso de Flores argued the categorical approach should apply to the personal-use exception, and that her Tennessee conviction necessarily involved ≤30 grams for personal use.
- The Fifth Circuit reviewed the BIA’s legal interpretation under Chevron deference and its factual findings for substantial evidence.
- The court concluded the BIA reasonably applied a circumstance-specific inquiry, found substantial evidence that the offense involved far more than 30 grams, and denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the personal-use exception in INA § 1227(a)(2)(B)(i) requires the categorical or a circumstance-specific inquiry | Cardoso de Flores: the categorical approach must apply to the exception; if statute could cover ≤30g, exception applies | Government/BIA: the exception looks to the facts of the offense; circumstance-specific inquiry is appropriate | Court: BIA’s circumstance-specific interpretation is reasonable and entitled to Chevron deference |
| Whether Cardoso de Flores’s Tennessee conviction necessarily established possession of ≤30 grams for personal use | Cardoso de Flores: § 39-17-418 necessarily covers only low-quantity personal possession | Government/BIA: § 39-17-418(a) covers simple possession without a quantity limit; (b) addresses low-quantity distribution; conviction could implicate >30g | Court: § 39-17-418 is not limited to ≤30g; BIA properly examined record facts |
| Whether the record supports that the offense involved more than 30 grams | Cardoso de Flores: did not contest that court should look to record but argued facts showed ≤30g | Government/BIA: arrest and prosecution records show 54.6 pounds | Court: substantial evidence supports BIA finding of possession of 54.6 pounds; personal-use exception does not apply |
| Whether rule of lenity or statutory ambiguity favors Cardoso de Flores | Cardoso de Flores: any ambiguity should be resolved in her favor | Government/BIA: statute is not ambiguous; BIA’s reading is reasonable | Court: statute not grievously ambiguous; lenity not warranted |
Key Cases Cited
- Nijhawan v. Holder, 557 U.S. 29 (analysis distinguishing when statutory thresholds require case-specific fact inquiry)
- Moncrieffe v. Holder, 569 U.S. 184 (limits on applying circumstance-specific inquiry where categorical approach governs)
- Mellouli v. Lynch, 135 S. Ct. 1980 (categorical approach governs whether conviction is a controlled-substance offense)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (deference to reasonable agency statutory interpretation)
- Esquivel v. Lynch, 803 F.3d 699 (Fifth Circuit previously applied BIA circumstance-specific approach without challenging it)
- Calvillo Garcia v. Sessions, 870 F.3d 341 (discussing review standards and Chevron deference)
- Ghotra v. Whitaker, 912 F.3d 284 (reviewing BIA opinion rather than IJ’s order)