Deon Bogle v. Garland
| Decision Date | 29 December 2021 |
| Docket Number | 19-72290 |
| Parties | Lionel Prince Deon Bogle, Petitioner, v. Merrick B. Garland, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lionel Prince Deon Bogle, Petitioner,
v.
Merrick B. Garland, Attorney General, Respondent.
No. 19-72290
United States Court of Appeals, Ninth Circuit
December 29, 2021
Argued and Submitted July 7, 2020 Portland, Oregon
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A086-972-722
Kari E. Hong, Boston College Law School, Newton, Massachusetts, for Petitioner.
David Kim 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.
SUMMARY [**]
Immigration
The panel filed (1) an order withdrawing the opinion and dissent filed on June 23, 2021, denying a petition for panel rehearing, and denying on behalf of the court a petition for rehearing en banc; and (2) an amended opinion denying Lionel Prince Deon Bogle's petition for review of a decision of the Board of Immigration Appeals. In the amended opinion, the panel held that, in determining whether a conviction satisfies the thirty-gram limit of the personal-use exception to the ground of removability based on drug convictions, the circumstance-specific approach applies to determining the amount of marijuana involved in the conviction.
Under the personal-use exception of 8 U.S.C. § 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 possessing more than one ounce of marijuana-28.35 grams. However, the police report stated that Bogle possessed 47.12 ounces of marijuana-1335.852 grams.
The panel first concluded that Bogle's conditional discharge for his Georgia drug offense was a "conviction" under the Immigration and Nationality Act, explaining that it satisfied the requirements for situations in which an adjudication of guilt has been withheld because the
conditional discharge: (1) required Bogle to plead guilty to or be found guilty of possessing marijuana; and (2) imposed probation, with 16 days in confinement.
Joining the court's sister circuits to have addressed the issue, the panel deferred to Matter of Davey, 26 I. &N. Dec. 37 (BIA 2012), in which the BIA held that the circumstancespecific approach applies to the personal-use exception. The panel explained that § 1227(a)(2)(B)(i) does not unambiguously direct courts to use the either the categorical approach or the circumstance-specific approach, and further concluded that Matter of Davey is a reasonable interpretation. Specifically, consistent with Nijhawan v. Holder, 557 U.S. 29 (2009), which discusses the conditions that call for the circumstance-specific inquiry, the panel explained that the language of § 1227(a)(2)(B)(i) focuses on the conduct involved in an offense, not its elements, and that the scarcity of matching state or federal offenses meant that applying the categorical approach would render the personal-use exception meaningless or, at best, haphazard in application.
The panel observed that the circumstance-specific approach permits a petitioner to be deported on the basis of circumstances that were not judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute. However, the panel explained that the approach still requires fundamentally fair procedures and requires the government to prove that the quantity of marijuana exceeded thirty grams by clear and convincing evidence.
The panel concluded that the circumstances specific to this case easily satisfied that burden. The panel explained that the police report here was probative and reliable, noting
that it was detailed, internally consistent, and recorded observations of fact. The panel declined to adopt a rule that no police report could ever be sufficient, standing alone, concluding that such a categorical rule would be directly contrary to the Supreme Court's instruction to consider the particulars of each case, and would also impose a higher evidentiary standard for removals than for certain criminal convictions. In addition to the police report, the panel considered the following circumstances: (1) Bogle's failure to challenge the police report's record of the amount of marijuana, despite his protests that he did not know there was marijuana in the vehicle; (2) his reliance on the theoretical argument that he could have possessed somewhere between 28.36 and thirty grams, rather than any offer of proof that he did possess such an amount; (3) his testimony that the bag recovered by the police contained no more than 40 grams and that there was marijuana in the car; and (4) the fact that the police report indicated that the reported amount exceeded the statutory cutoff by a large degree.
Finally, the panel did not grant review of the denial of Bogle's application for cancellation of removal, explaining that, barring a colorable constitutional claim or question of law, the court lacks jurisdiction to review such a discretionary decision.
Dissenting, Judge Pearson joined the majority in concluding that that Bogle's conditional discharge was a conviction under the INA, that the circumstance-specific approach applies in this context, and in rejecting a categorical rule that a police report can never be sufficient to meet the government's burden. However, Judge Pearson concluded that the police report in this case did not satisfy the government's burden of clear and convincing evidence.
Judge Pearson wrote that the government could only deem Bogle removable after it had proven that the conviction itself, i.e. Bogle's plea, involved 30 grams of marijuana or more, and here, there was no indication that the police report was a part of the factual basis for Bogle's guilty plea, and nothing in the record indicated that Bogle admitted or stipulated to an amount of marijuana, that evidence was presented to the Georgia court concerning the quantity of marijuana, or that the court made any finding as to a quantity.
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.
OPINION
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...
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