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De Flores v. Whitaker

United States Court of Appeals, Fifth Circuit

February 11, 2019

MARIA SYLVIA CARDOSO DE FLORES, also known as Maria Flores, Petitioner
v.
MATTHEW G. WHITAKER, ACTING U.S. ATTORNEY GENERAL, Respondent

          Petition for Review of an Order of the Board of Immigration Appeals

          Before KING, HIGGINSON, and COSTA, Circuit Judges.

          PER CURIAM

         An immigration judge ordered petitioner Maria Sylvia Cardoso de Flores removed from the United States. Cardoso de Flores had been lawfully admitted as a permanent resident alien, but the immigration judge determined she was removable under the Immigration and Nationality Act because she was convicted of a drug offense. The Board of Immigration Appeals affirmed. Cardoso de Flores petitions this court for review, arguing that she is not removable because she was convicted for possessing a small amount of marijuana for personal use. We find no error in the BIA's analysis; accordingly, we DENY Cardoso de Flores's petition.

         I.

         Cardoso de Flores, a Mexican citizen, was lawfully admitted to the United States as a permanent resident alien in 1998 after marrying a United States citizen. In 2000, authorities in Tennessee arrested Cardoso de Flores after finding her in a car carrying 54.6 pounds of marijuana. A Tennessee grand jury indicted Cardoso de Flores with possessing with the intent to sell more than 4, 536 grams of marijuana in violation of Tenn. Code Ann. § 39-17-417. Cardoso de Flores later pleaded guilty to the lesser offense of possession of a controlled substance in violation of Tenn. Code Ann. § 39-17-418.

         In 2010, the Department of Homeland Security issued Cardoso de Flores a notice to appear charging her with removability under 8 U.S.C. § 1227(a)(2)(B)(i)-part of the Immigration and Nationality Act ("INA")- because she had been convicted of a controlled-substance offense. Cardoso de Flores argued through counsel that her Tennessee conviction did not render her removable because her conviction was for "a single offense involving possession for one's own use of 30 grams or less of marijuana," which § 1227(a)(2)(B)(i) excepts as grounds for removal. Looking to Cardoso de Flores's arrest report, an immigration judge (the "IJ") determined that Cardoso de Flores's conviction involved possession of 54.6 pounds of marijuana.[1] The IJ therefore determined that § 1227(a)(2)(B)(i)'s personal-use exception did not apply. The IJ further found Cardoso de Flores was not entitled to cancellation of removal because she did not live in the United States continuously for seven years prior to her offense. Accordingly, the IJ ordered Cardoso de Flores removed from the United States.

         Cardoso de Flores appealed to the Board of Immigration Appeals ("BIA"). Following its precedent, the BIA applied a circumstance-specific inquiry to determine whether the personal-use exception applied to Cardoso de Flores's conviction. It determined as a threshold matter that the Tennessee statute supporting Cardoso de Flores's conviction was not limited to simple possession of 30 or fewer grams of marijuana. Then, looking to Cardoso de Flores's arrest report, criminal complaint, and plea colloquy, the BIA determined that Cardoso de Flores possessed 54.6 pounds of marijuana. Finding no contrary evidence, it concluded that the personal-use exception did not apply and affirmed the IJ's order. Cardoso de Flores now petitions this court for review.

         II.

         Where, as here, the BIA issues its own opinion explaining its reasoning, we review the BIA's opinion instead of the IJ's order. See Ghotra v. Whitaker, 912 F.3d 284, 287 (5th Cir. 2019). "Although we generally review its legal conclusions de novo, 'the BIA is entitled to Chevron deference when it interprets a statutory provision of the INA and gives the statute "concrete meaning through a process of case-by-case adjudication, "' so long as the BIA's opinion is precedential." Calvillo Garcia v. Sessions, 870 F.3d 341, 343-44 (5th Cir. 2017) (footnotes omitted) (quoting Ali v. Lynch, 814 F.3d 306, 309-10 (5th Cir. 2016)); see also Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843-44 (1984). Under Chevron, we afford agency interpretations of statutes "'controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute' or Congress has 'unambiguously expressed' a contrary intent." Calvillo Garcia, 870 F.3d at 344 (quoting Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012)). We review the BIA's factual findings for substantial evidence. Ghotra, 912 F.3d at 287.

          III.

         Section 1227 lists categories of aliens subject to removal, including:

Any alien who at any time after admission 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 (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana.

§ 1227(a)(2)(B)(i). Courts must apply the so-called categorical approach to determine whether an alien's conviction relates to a controlled substance. See Mellouli v. Lynch, 135 S.Ct. 1980, 1985-87 (2015). Under the categorical approach, courts "look[] to the statutory definition of the offense of conviction, ...


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