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Ventura v. Sessions

United States Court of Appeals, Fifth Circuit

October 19, 2018

MANUEL LOPEZ VENTURA, Also Known as Manuel A. Lopez-Ventura, Petitioner,
JEFFERSON B. SESSIONS, III, U.S. Attorney General, Respondent.

          Appeal from an Order of the Board of Immigration Appeals

          Before SMITH, CLEMENT, and COSTA, Circuit Judges.


         Manuel Lopez Ventura, a native and citizen of the Dominican Republic and a lawful permanent resident ("LPR") of the United States, pleaded guilty of possessing AB-CHMINACA in violation of Louisiana Revised Statutes § 40.966(C). After his arrest, but before his conviction, AB-CHMINACA was added to the federal schedules of controlled substances. After his conviction, Lopez Ventura traveled to the Dominican Republic. Upon his return, he applied for admission as an LPR. But the Department of Homeland Security charged him with being inadmissible under the Immigration and Nationality Act ("INA") because of the Louisiana conviction. See 8 U.S.C. § 1182(a)(2)-(A)(i)(II). Lopez Ventura denied the charge, relying on the fact that AB-CHMINACA was not a controlled substance at the time of his arrest. The Board of Immigration Appeals ("BIA") ultimately found him inadmissible, reasoning that AB-CHMINACA was a controlled substance on the date of his conviction. Because the application of § 1182(a)(2)(A)(i)(II) to Lopez Ventura is impermissibly retroactive, we grant the petition for review, reverse the order of the BIA, and remand for the BIA to determine whether Lopez Ventura was convicted of possessing marihuana or, instead, AB-CHMINACA.


         In 2014, Lopez Ventura was arrested for possessing cigarillo cigars and AB-CHMINACA, a synthetic cannabinoid. In February 2015, he was charged with possession of a controlled substance and drug paraphernalia in violation of Louisiana Revised Statutes §§ 40:966(C) and 40:1023, respectively. On April 16, 2015, he pleaded guilty of possessing marihuana and drug paraphernalia. At the time of the arrest, AB-CHMINACA was not a federally controlled substance. See 21 C.F.R. § 1308.11 (effective Mar. 7, 2014, to Jan. 29, 2015). Yet by the time he was charged and pleaded guilty, the Drug Enforcement Administration had added AB-CHMINACA to the controlled substance schedules as authorized by 21 U.S.C. § 811(h).[1]

         An alien convicted of violating any state law relating to a federally controlled substance is inadmissible as an LPR. See 8 U.S.C. § 1182(a)(2)-(A)(i)(II). Lopez Ventura claimed he was admissible because his Louisiana convictions concerned AB-CHMINACA, which was not a controlled substance on the date of his offense.

         The Immigration Judge ("IJ") denied the motion, reasoning that AB-CHMINACA was a controlled substance on the date of Lopez Ventura's conviction. Lopez Ventura moved to reconsider and requested relief from removal under the INA.[2] The IJ denied that motion, finding that Lopez Ventura had actually been convicted of possessing marihuana-not AB-CHMINACA-so the drug he possessed had always been a controlled substance. The IJ then concluded, in a somewhat self-contradictory fashion, that Lopez Ventura was not eligible for § 1182(h) relief because he had been convicted of possessing AB-CHMINACA, not marihuana.

         Lopez Ventura appealed to the BIA with the same arguments. But for the first time, he explicitly invoked the presumption against retroactivity, citing Vartelas v. Holder, 566 U.S. 257 (2012). The BIA affirmed. It concluded that the relevant date for purposes of § 1182(a)(2)(A)(i)(II) was the date of conviction and that AB-CHMINACA had been a controlled substance when Lopez Ventura was convicted. It further held that Lopez Ventura had waived his claim that § 1182(a)(2)(A)(i)(II) was being applied in a retroactive manner. Yet the BIA never resolved whether Lopez Ventura had been convicted of possessing marihuana instead of AB-CHMINACA.

         Lopez Ventura petitions for review, asserting that the application of § 1182(a)(2)(A)(i)(II) to his case is retroactive because it attaches new legal consequences to his possession of AB-CHMINACA. And, as Lopez Ventura posits, there is nothing in the statute to overcome the presumption against retroactivity. The government replies that Lopez Ventura has waived a critical part of his argument on appeal. Moreover, it insists that because the statutory text, the categorical approach, and policies undergirding the INA focus on convictions, the court must consider whether the substance was controlled on the date of conviction, not commission. Finally, the government avers that § 1182(a)(2)(A)(i)(II) is explicitly retroactive in any event.


         We review the BIA's rulings of law de novo and findings of fact for "substantial evidence." Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). We consider the IJ's decision only "to the extent that it influenced the BIA." Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009). The BIA's order was entered by a single member of the BIA and was not precedential.[3] Because the order therefore lacks the force of law, it is entitled only to Skidmore deference.[4]"Even so, it will be examined closely for its power to persuade." Dhuka, 716 F.3d at 156.

         The BIA ruled that Lopez Ventura had waived his claim that applying § 1182(a)(2)(A)(i)(II) to his Louisiana conviction would be impermissibly retroactive. We disagree. The presumption against retroactivity is merely a tool of statutory interpretation, not a separate claim for relief. See Falek v. Gonzales, 475 F.3d 285, 290 (5th Cir. 2007). From the start, Lopez Ventura has consistently maintained that § 1182(a)(2)(A)(i)(II), properly construed, does not apply where the crime involves a substance not controlled on the date of commission. Although he did not expressly invoke the presumption against retroactivity until his appeal to the BIA, Lopez Ventura has always advocated an interpretation of the INA that dovetails with that presumption.[5] Indeed, to say that § 1182(a)(2)(A)(i)(II) should not apply where the substance became controlled after the criminal act is to claim that such application is improperly retroactive.[6]

         Even if Lopez Ventura did not clearly present his retroactivity claim before the IJ, the argument is still preserved via a petition for review. It is settled practice that to be considered on review, an issue must generally have been "pressed or passed upon" in the tribunal a quo.[7] Though the BIA found that Lopez Ventura had waived his retroactivity claim, it held that the relevant inquiry under § 1182(a)(2)(A)(i)(II) is whether a substance was controlled on the date of conviction. In doing so, the BIA plainly rejected Lopez Ventura's reading of the statute and implicitly determined that applying § 1182(a)(2)-(A)(i)(II) to him was not impermissibly retroactive. Because the BIA therefore passed upon Lopez Ventura's claim, we may consider his argument on petition for review.


         The presumption against retroactive legislation arises in a "case that implicates a federal statute enacted after the events in suit." Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). That presumption is "deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic." Id. at 265. Accordingly, "the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place."[8]Congress may enact retroactive legislation if it does not offend a specific constitutional prohibition. Id. at 267-68. But the Court requires that Congress legislate with a clear statement of retroactivity. Id.

         To determine whether a statute is impermissibly retroactive, we must ask first "whether Congress has expressly prescribed the statute's proper reach" and second "whether the new statute would have retroactive effect." Id. at 280. That framework also applies when determining the retroactive effect of a regulation.[9]


         The standard for finding a clear directive of retroactivity "is a demanding one." I.N.S. v. St. Cyr, 533 U.S. 289, 316 (2001). The statute must contain wholly unambiguous language that it applies retroactively.[10] For instance, a definition of "aggravated felony" that "applies expressly to 'convictions entered before, on, or after' the statute's enactment date" is sufficient to overcome the presumption.[11] But a ...

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