Bogle v. Garland

• Decision Date: 29 December 2021
• Docket Number: No. 19-72290,19-72290
• Citation: 21 F.4th 637
• Parties: Lionel Prince Deon BOGLE, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

21 F.4th 637

Lionel Prince Deon BOGLE, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-72290

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2020 Portland, Oregon

Filed December 29, 2021

Kari E. Hong (argued), Boston College Law School, Newton, Massachusetts, for Petitioner.

David Kim (argued) and Aric A. Anderson, Trial Attorneys; Kohsei Ugumori, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Raha Jorjani and Kelsey Morales, Alameda County Public Defender's Office, Oakland, California; Francisco Ugarte and Genna Beier, San Francisco Office of the Public Defender, San Francisco, California; for Amici Curiae Alameda County Public Defender's Office, Bronx Defenders, Brooklyn Defender Services, City of Atlanta Office of the Public Defender, The Legal Aid Society, The San Francisco Public Defender's Office, and Stand Together Contra Costa.

Before: Mark J. Bennett and Eric D. Miller, Circuit Judges, and Benita Y. Pearson,^** District Judge.

Order;

Opinion by Judge Bennett ;

Dissent by Judge Pearson

ORDER

The opinion and dissent filed on June 23, 2021, and published at 2 F.4th 1172 (9th Cir. 2021) are withdrawn. A new opinion and dissent are filed concurrently with this order.

Petitioner has filed a petition for panel rehearing and a petition for rehearing en banc. [Dkt. No. 63]. A majority of the panel votes to deny the petition for panel rehearing. Judges Bennett and Miller vote to deny the petition for panel rehearing, and Judge Pearson votes to grant the petition for panel rehearing. Judges Bennett and Miller also vote to deny the petition for rehearing en banc, and Judge Pearson recommends granting the petition. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on en banc rehearing. See Fed. R. App. P. 35(f).

The petition for panel rehearing and rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc will be entertained.

BENNETT, Circuit Judge:

Lionel Prince Deon Bogle, a native and citizen of Jamaica, seeks review of the dismissal by the Board of Immigration Appeals (BIA) of his appeal from the immigration judge's (IJ) order of removal and denial of his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252 and deny the petition.

In general, a drug conviction is a removable offense under 8 U.S.C. § 1227(a)(2)(B)(i). However, under the personal-use exception of § 1227(a)(2)(B)(i), a drug conviction does not render an alien removable if it was "a single offense involving possession for one's own use of 30 grams or less of marijuana." Bogle pleaded guilty to possession of more than one ounce of marijuana. One ounce is 28.35 grams, so viewing Bogle's plea alone, it is possible that the personal-use exception applies. But the relevant police report states that Bogle was in possession of 47.12 ounces of marijuana—that is, 1335.852 grams—about 4300% over the thirty-gram limit.

The issue we must first decide is whether the categorical, modified categorical, or circumstance-specific approach applies to the personal-use exception's thirty-gram limit. If the categorical approach applies, Bogle's offense did not categorically involve the possession of more than thirty grams of marijuana, and our analysis stops there. If the modified categorical approach applies, we could look at certain relevant documents, but likely not the police report. See United States v. Almazan-Becerra , 537 F.3d 1094, 1097 (9th Cir. 2008). If the circumstance-specific approach applies, we would then decide whether the circumstances specific to this case establish by clear and convincing evidence that Bogle's offense involved the possession of more than thirty grams of marijuana.

This is a matter of first impression in this circuit, and we conclude that the circumstance-specific approach applies to the thirty-gram limit of § 1227(a)(2)(B)(i)'s personal-use exception. We further conclude that the circumstances specific to this case clearly establish that the amount of marijuana in Bogle's possession exceeded thirty grams.

I. FACTS

The circumstances are the following.

Bogle entered the United States in 2006 and became a lawful permanent resident in 2010. In 2014, he was arrested in Georgia for possession with intent to distribute more than one ounce of marijuana. The police report states that the officers found, in the rental car that Bogle was driving, three "gallon[-]size plastic bags ... [containing] a green leafy material." The police report also states: "The three gallon[-]size plastic bags contain[ing] the green leafy material tested positive for marijuana. Bag number 1's net weight was 446.6 grams, bag number two's net weight was 450.5 grams and bag number three's net weight was 438.8, totaling 47.12 ounces equaling 2.94 pounds, with a street value of $9000.00." Bogle received a "conditional discharge" for this offense by pleading guilty to possession of more than one ounce of marijuana under a Georgia statute that allows a court to place certain defendants on probation without a formal adjudication of guilt, in exchange for a guilty plea. See Ga. Code § 16-13-2(a). Under the statute, compliance with the conditions of probation guarantees the discharge of all charges relating to the offense once the term of probation expires, and that discharge "[is not] deemed a conviction for purposes" of Georgia law. See id.

In 2016, the government initiated removal proceedings against Bogle under § 1227(a)(2)(B)(i) based on his controlled substance offenses,¹ and in 2019, the IJ found him removable. In those proceedings, the IJ considered Bogle's testimony and all forty-two exhibits that had been admitted—including those admitted in Bogle's 2017 hearings before a different IJ, and including the transcripts of Bogle's prior testimony in those hearings.

When Bogle testified in 2019, he never claimed the entire Georgia police report was inaccurate. Rather, he made a point to clarify that only parts of it were: "As to the police report especially in Georgia, Your Honor, I—it's not accurate. It's not fully accurate , Your Honor." (Emphasis added). In his decision, the IJ noted the inaccuracies Bogle alleged:

[Bogle] did not say someone would tell him where to bring the vehicle when he got to Thompson; he did not get paid $180 to make the trip, but had $180 with him when arrested; he did not admit to the police that he knew marijuana was in the vehicle; and he did not tell the police he did it to make some extra money.

Bogle never disputed that nearly three pounds of marijuana were found in the car he was driving, as recorded in the police report.

Nor could he, as his testimony was directly to the contrary:

Petitioner: [T]he rental car was not in my name. There was no evidence that I knew the marijuana was in the car.

***

IJ: You're telling me that the 2014 case when you're in Georgia, driving a car, and all this marijuana in it just happened to be bad luck. You won the reverse lottery? Is that what you want me to believe?

***

Petitioner: Yes , Your Honor because–

***

Petitioner: Because I didn't, I didn't—as I said, I—as I told the Honorable Judge before, the cops said they found it in secret compartment. I didn't know it was a secret compartment in the vehicle, Your Honor.... I admit there was marijuana in the car, and I admit to it but did I knowingly get in the car and drove it knowing that marijuana was there, no, I did not. I just did not, your Honor.

(Emphasis added). The only fair reading of this exchange is that Bogle claimed he did not know the three pounds of marijuana were in the car—not that Bogle claimed the three pounds were actually thirty grams or fewer. Some of Bogle's statements can only be reasonably interpreted as admissions that three pounds of marijuana were in the car, as described in detail in the police report—particularly his affirmative answer to the IJ's question about whether "all this marijuana in [the car Petitioner had rented and was driving] just happened to be bad luck" and his admission "I admit there was marijuana in the car, and I admit to it."

In Bogle's 2017 testimony as well, he disputed that he knowingly possessed the marijuana in the rental car. He testified: "I didn't consciously knowingly get into that car and drove it with knowing that marijuana was there. I admit I had possession of the car and it had possessed the marijuana , but I didn't consciously and knowingly get into that car that night knowing it was there." (Emphasis added). Bogle's counsel added: "The [Petitioner] has consistently contested the police report from [Georgia] as to whether or not he knew the marijuana was in the car in 2014." (Emphasis added). In other words, Bogle vigorously contested his knowledge of the marijuana in the rental car, but he never contested the amount of marijuana recovered from the car. In fact, in 2017, Bogle expressly acknowledged the amount of some of the marijuana in the rental car. He testified that the police found a "little" bag of marijuana, "[n]othing more than say 40, 40 grams ," in addition to the marijuana they later found "hidden in the firewall of the car." (Emphasis added).

It was against this backdrop that the IJ considered the Georgia police report. The police report recorded the quantity of marijuana at over 1300 grams—1270 grams greater than the thirty-gram cutoff for the personal-use exception to apply. And contrary to Bogle's testimony before the IJs that he did not know the marijuana was in the car,² the police report states that Bogle "told [the officer] that he knew that drugs [were] in the car and only did it to make some extra money." And, according to the report, there was "a very strong odor of marijuana coming from inside of the car," which was a rental that Bogle was borrowing to drive from Atlanta to Augusta and back to Atlanta "for a friend."...