Flores-Arellano v. I.N.S., FLORES-ARELLAN

• Decision Date: 15 September 1993
• Docket Number: FLORES-ARELLAN,No. 92-70129,P,92-70129
• Citation: 5 F.3d 360
• Parties: Jaime Salvadoretitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 360

5 F.3d 360

Jaime Salvador FLORES-ARELLANO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-70129.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 16, 1993.

Decided Sept. 15, 1993.

Sonia Saldivar (law student intern argued) and Lillia S. Velasquez, San Diego, CA, for petitioner.

David M. McConnell and Karen Fletcher Torstenson, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Board of Immigration Appeals.

Before: WOOD, Jr. ^* , REINHARDT, and RYMER, Circuit Judges.

REINHARDT, Circuit Judge:

Jaime Salvador Flores-Arellano challenges the finding that he is deportable on the basis of a misdemeanor state conviction of being under the influence of amphetamine/methamphetamine. Because we conclude that section 241(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1251(a)(2)(B)(i), plainly reaches under-the-influence convictions for controlled substances other than marijuana, we deny Flores' petition for review.

I

Flores, now 29 years old, entered the United States as a permanent resident on April 16, 1990. Although this is the official date of his legal immigrant entry to the United States, Flores lived in this country for many years prior to 1990. All of Flores' parents and siblings are legal permanent residents, and he has two United States citizen children.

On August 13, 1990, Flores pleaded guilty in San Diego Municipal Court to using and being under the influence of amphetamine and methamphetamine on January 8, 1989, ¹ in violation of Cal.Health & Safety Code Sec. 11550. ² On January 20, 1991, the Immigration & Naturalization Service (INS) issued an order to show cause charging Flores with deportability on the basis of his under-the-influence conviction. ³ The Immigration Judge found Flores deportable on August 15, 1991, and he appealed. The Board of Immigration Appeals (BIA) dismissed his appeal on February 4, 1992. Flores petitions for review.

II

INA section 241(a)(2)(B)(i) provides that:

Any alien who at any time after entry 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 ... other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

8 U.S.C. Sec. 1251(a)(2)(B)(i). Flores contends that this provision does not render deportable aliens convicted of use or being under the influence of a controlled substance.

The plain language of section 241(a)(2)(B)(i) reaches under-the-influence convictions. The ordinary meaning of the phrase "any law ... relating to a controlled substance" encompasses laws proscribing use or being under the influence of a controlled substance. The provision is not ambiguous, nor does its plain language lead to absurd results or internal statutory inconsistencies. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). Flores' arguments that we should abandon this plain meaning in interpreting section 241(a)(2)(B)(i) are unpersuasive.

Flores relies on cases from the federal courts and the BIA interpreting a prior version of the statute as not reaching under-the-influence convictions. See Varga v. Rosenberg, 237 F.Supp. 282 (S.D.Cal.1964), cited with approval in Matter of Sum, 13 I & N.Dec. 569, 570 (B.I.A.1970). The previous version interpreted by these cases limited deportability to aliens convicted of trafficking or possession offenses. ⁴ In the Anti-Drug Abuse Act of 1986, Congress substituted the broader language now in the statute. See Pub.L. No. 99-570, Subtitle M (Narcotics Traffickers Deportation Act), Sec. 1751(b), 100 Stat. 3207, 3207-47 (1986). Flores argues that Congress did not intend the amendment to overrule precedent excluding under-the-influence convictions from the deportability statute. However, the legislative history surrounding the 1986 amendment of the deportability statute is inconclusive, lacking the clear indication of a contrary intention necessary to overcome the plain meaning of the post-amendment statute. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434 (1987) (when plain language appears to settle question, only clearly expressed contrary intention in legislative history may overcome "strong presumption" that Congress expresses its intent through language it chooses).

Looking to the structure of the statute, Flores argues that the inclusion of "drug abusers" as an independent deportable class under section 241(a)(2)(B)(ii) demonstrates that Congress did not intend aliens convicted of drug "use" crimes to be deportable under section 241(a)(2)(B)(i). Flores' contention rests on the conclusion that if drug "use" convictions render an alien deportable, then the provision regarding drug "abuse," involving more sustained use of controlled substances, would be superfluous. Flores' argument overlooks the conviction requirement in subsection (i), which renders the grounds for deportability specified in subsections (i) and (ii) logically distinguishable. Subsection (ii) reaches alien drug "abusers" who have not been convicted of a controlled substance offense while subsection (i) reaches all aliens convicted of controlled substance violations, including the use of drugs.

Finally, Flores contends that the legislature's specified exclusion of single offenses involving possession of a personal-use quantity of marijuana and its omission of a similar exclusion for actual use of marijuana leads to the incongruous result that one conviction of the less serious offense of marijuana use would lead to deportation while one conviction of possession would not. ⁵ To avoid imputing such irrationality to our lawmakers, Flores argues that Congress did not interpret the section as reaching any under-the-influence offenses and therefore had no reason to specify an exception for marijuana use.

While the argument has some superficial appeal, there is a much more logical interpretation of section 241(a)(2)(B)(i) that avoids the paradoxical result suggested by Flores: the exception for a single conviction involving personal-use marijuana possession includes an implicit exception for a single conviction of actual personal use of marijuana. Such an interpretation of the statute makes absolute logical sense, but does not affect aliens, like Flores, who are convicted of being under the influence of controlled substances other than marijuana. The inclusion of a limited exception for a single conviction of marijuana possession does not contradict the plain meaning of section 241(a)(2)(B)(i) as encompassing under-the-influence convictions.

III

Because we conclude that INA section 241(a)(2)(B)(i) renders deportable aliens convicted of use or being under the influence of controlled substances other than marijuana, we deny Flores' petition for review. ⁶

DENIED.

REINHARDT, Circuit Judge, specially concurring:

Even as combatting crime has become a major federal legislative initiative of yet another presidential administration, we have become increasingly aware of the unintended casualties of our decade-long "War on Drugs." Of late, several members of the ordinarily reticent judiciary have spoken out about some of these previously-hidden costs: the loss of sentencing discretion and lengthy incarceration of first-time offenders, for example. Judges have also noted that major drug offenders can and do obtain more lenient treatment than fringe participants because only the major players can turn in their subordinates and thus provide the substantial governmental assistance that is a prerequisite to sentencing below the statutory minimum. The far less culpable bit players ordinarily have no knowledge of who their ringleaders are. In the catalog of draconian acts perpetrated in furtherance of federal efforts to eliminate illicit drug trafficking, deporting lawful resident aliens solely because of a single conviction of drug use must certainly rank high. Deportation is a drastic action indeed when applied to people here lawfully, with long-term residency and extensive family ties in this country, often to parents or children. Nonetheless, the legislature's words compel the result we reach in our opinion. I write this special concurrence only to emphasize two points.

The first is that this is one of those rare occasions when our statutory interpretation rests almost entirely upon the legal fiction that Congress' language embodies its intent. See Connecticut Nat'l Bank v. Germain, --- U.S. ----, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (plain language rule, like all canons of construction, is a presumptive rule of thumb for use in determining statutory meaning). Under the established approach to statutory interpretation, we rely on plain language in the first instance, but always look to legislative history in order to determine whether there is a clear indication of contrary intent. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434 (1987). In the usual case, of course, the history provides further support for the plain-language interpretation. That is not surprising and explains in part why the presumption in favor of interpretations conforming to ordinary meaning makes sense. However, on some occasions, there is nothing in the congressional discussions to support the plain-language interpretation. This is such a case.

Neither party has identified anything in the legislative history that demonstrates that any legislator, much less a majority of them, thought about whether a lawful resident alien convicted of use or being under the influence should be deportable as one convicted of violating "any law ... relating to a controlled substance." The...