Esquivel v. Lynch

• Decision Date: 01 October 2015
• Docket Number: No. 13–60326.,13–60326.
• Citation: 803 F.3d 699
• Parties: Rene E. Flores ESQUIVEL, Petitioner, v. Loretta E. LYNCH, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

803 F.3d 699

Rene E. Flores ESQUIVEL, Petitioner

v.Loretta E. LYNCH, U.S. Attorney General, Respondent.

No. 13–60326.

United States Court of Appeals, Fifth Circuit.

Oct. 1, 2015.

Brian Keith Bates, Esq., Houston, TX, for Petitioner.

Michael Christopher Heyse, Trial Attorney, Walter Bocchini, Esq., Trial Attorney, Tangerlia Cox, U.S. Department of Justice, Washington, DC, for Respondents.

Petitions for Review of an Order of the Board of Immigration Appeals.

Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.

Opinion

E. GRADY JOLLY, Circuit Judge:

In this appeal, we reject the Board of Immigration Appeals's (BIA) interpretation of the statute it administers and vacate the BIA decision under review. We do so because the plain language of the relevant statute clearly contradicts the interpretation that the BIA would give it.

Under § 237 of the Immigration and Nationality Act (INA), aliens are rendered removable by most drug convictions, except those that constitute “a single offense involving possession for one's own use of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i). The BIA has interpreted this “personal-use exception” to cover only offenses that, in addition to constituting “a single offense involving possession for one's own use of 30 grams or less of marijuana,” are also the “least serious” drug offenses under the law of the state in which they were committed. Here, the BIA relied solely on this interpretation of the exception in holding the petitioner, Rene Flores Esquivel, ineligible for cancellation of removal. See 8 U.S.C. § 1229b(d)(1). Because we find no statutory basis for the additional requirement that the BIA's interpretation has tacked onto the personal-use exception, we GRANT Flores's petition for review, VACATE the BIA's decision, and REMAND this matter to the BIA for further proceedings.

I.

Flores is a native and citizen of Mexico. In 2001, when he was 16 years old, he was admitted to the United States as a lawful permanent resident (LPR). In 2003, he was convicted of the Class A misdemeanor of possession of marijuana within 1,000 feet of his high school, a “drug-free zone” under Texas law. Tex. Health and Safety Code Ann. §§ 481.121(b)(1), 481.134(f)(1). According to the probable-cause affidavit, a drug dog assigned to sniff cars in the parking lot of Flores's high school alerted authorities to the possible presence of narcotics in Flores's car. The resulting search of the car yielded 4.6 grams of marijuana. In 2011, Flores was again convicted of possession of marijuana, a Class B misdemeanor. Id. § 481.121(b)(1).

Flores traveled briefly to Mexico in 2012. When he sought reentry to the United States, the U.S. Department of Homeland Security (DHS) discovered his prior convictions. It then instituted removal proceedings against him, alleging that he was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) because of his 2011 conviction for possession of marijuana.

In proceedings before the Immigration Judge (IJ), Flores conceded that the 2011 conviction rendered him inadmissible. He sought relief, however, in the form of cancellation of removal under 8 U.S.C. § 1229b(a). That statute permits an LPR to apply to have the Attorney General cancel his removal, so long as, among other things, the LPR “has resided in the United States continuously for 7 years.” Id. § 1229b(a)(2). DHS challenged Flores's eligibility to apply for cancellation of removal, contending that, in the light of his 2003 conviction and § 1229b's “stop-time rule,” Flores did not satisfy the continuous-residence requirement. The stop-time rule, § 1229b(d)(1), provides that an alien's period of continuous residence is “deemed to end” when the alien has committed an offense that renders him inadmissible under § 1182(a)(2) or removable under 8 U.S.C. § 1227(a)(2) or (a)(4). Agreeing with DHS, the IJ determined that Flores's 2003 conviction rendered him inadmissible under § 1182(a)(2)(A)(i)(II), such that, under the stop-time rule, Flores's period of continuous residence ended in 2003. Accordingly, the IJ concluded that Flores was ineligible for cancellation of removal, and ordered him removed to Mexico.

Flores appealed to the BIA. In a single-member ruling, the BIA affirmed the IJ, but on a different ground. The BIA held that Flores's 2003 conviction triggered the stop-time rule not because (as the IJ had held) it rendered him inadmissible under § 1182(a)(2)(A)(i)(II), but because it rendered him removable under § 1227(a)(2)(B)(i). Nonetheless, the result, according to the BIA, was the same: under the stop-time rule, Flores's 2003 conviction terminated his period of continuous residence “long before he had accrued the necessary 7 years” to be eligible to apply for cancellation of removal.¹

Flores filed a motion to reopen with the BIA, which the BIA denied. He then filed a petition for review with this court.

II.

Whether an individual is statutorily ineligible for cancellation of removal because of § 1229b(d)(1)'s stop-time rule is a question of law that we review de novo. Miresles–Zuniga v. Holder, 743 F.3d 110, 112 (5th Cir.2014). When, as here, the BIA's decision agrees “in certain respects” with the IJ's decision but does not rely on that decision, “our review is confined to the BIA's analysis and reasoning.” Enriquez–Gutierrez, 612 F.3d at 407.

III.

A.

The sole question before us is whether the BIA erred in determining that Flores's 2003 conviction for possession of marijuana in a drug-free zone rendered him removable under § 1227(a)(2)(B)(i). Section 1227(a)(2)(B)(i) provides as follows:

Any alien who at any time after admission has been convicted of a violation of ... 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.

Flores acknowledges that his conviction constitutes an offense “relating to a controlled substance.” He argues, however, that the conviction nonetheless does not render him ineligible for cancellation of removal because of the “personal-use” exception of § 1227(a)(2)(B)(i).

Under the personal-use exception, an alien is not rendered removable by “a single offense involving possession for one's own use of 30 grams or less of marijuana.” § 1227(a)(2)(B)(i). According to its plain language, then, the exception applies if four elements are met—the offense must be (1) a single offense; (2) involving possession for one's own use; (3) of 30 grams or less; (4) of marijuana. See In re Davey, 26 I. & N. Dec. 37, 39 (BIA 2012) (“[The personal-use exception] refers not to a common generic crime but rather to a specific type of conduct (possession for one's own use) committed on a specific number of occasions (a ‘single’ offense) and involving a specific quantity (30 grams or less) of a specific substance (marijuana).”). Here, Flores has presented evidence—and the government has not disputed—that these four elements are met: Flores's 2003 conviction was his first; it was for possession for his own use, not for distribution; and he possessed 4.6 grams of marijuana. Thus, we can reach no conclusion other than that the exception applies.²

B.

In concluding to the contrary, the BIA's decision relied exclusively on the BIA's interpretation of the personal-use exception, which it first articulated in Matter of Moncada–Servellon, 24 I. & N. Dec. 62 (BIA 2007) ; see also Davey, 26 I. & N. Dec. at 40 n. 3. There, an LPR who had been convicted of possession of marijuana while in prison in violation of a California statute asserted that he was eligible for cancellation of removal under the personal-use exception. Moncada–Servellon, 24 I. & N. Dec. at 63. The BIA disagreed. According to the BIA, the personal-use exception encompasses “the least serious drug violations only—that is, those involving the simple possession of small amounts of marijuana.” Id. at 65. In other words, the BIA read the statutory phrase “possession for one's own use,” § 1227(a)(2)(B)(i), to be “interchangeable” with “the concept[ ] of ‘simple possession’.” Id. at 67. Thus, in the BIA's view, “[t]he personal-use exception is not intended or understood by Congress to apply to offenses that are significantly more serious than simple possession by virtue of other statutory elements that greatly increase their severity.” Id. at 65. And because the LPR's offense of possessing marijuana in prison was “significantly more serious than simple possession,” the BIA—applying its newly minted interpretation of the personal-use exception—held him ineligible for cancellation of removal. Id. at 64–67.

Citing Moncada–Servellon, the BIA here concluded that Flores's conviction for possession of marijuana in a school zone is, like the conviction for possession of marijuana in prison at issue in Moncada–Servellon, “significantly more serious than simple possession” because it is treated as such under Texas law. Accordingly, the BIA held that Flores is ineligible for cancellation of removal.

C.

We do not see it quite the same way. We feel compelled to apply the plain language of the personal-use exception, not the gloss put upon it by the BIA in Moncada–Servellon. To be sure, precedential BIA decisions issued by a three-member panel—like the decision in Moncada–Servellon —may be entitled to Chevron deference. See Dhuka v. Holder, 716 F.3d 149, 154–56 (5th Cir.2013). But “no deference,” under Chevron or otherwise, “is due to agency interpretations at odds with the plain language of the statute itself.” Pub. Emps. Ret. Sys. v. Betts, 492 U.S. 158, 171, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989) ; see also Texas v. United States, 497 F.3d 491, 501 (5th Cir.2007) (“Judicial deference is due only ‘if the agency interpretation is not in conflict with the plain language of the statute.’ ” (quoting Nat'l R.R. Passenger Corp. v. Bos. & Me. Corp., 503 U.S. 407, 417, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992) )). For several reasons, we...