Bogle v. Garland, No. 19-72290 (9th Cir. 2021)
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The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's order of removal and denial of his application for cancellation of removal.
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. Applying that approach to petitioner's case, the panel concluded that the circumstances specific here clearly establish that petitioner knowingly possessed more than thirty grams of marijuana. In this case, the police report is detailed, is internally consistent, and records observations of fact rather than the officers' conclusions. The report states that the "green leafy material" found in the three bags "tested positive for marijuana," and provides the precise weight of each. Given that petitioner did not specifically contest the measurements of quantity in the report, holding such a report to be insufficient would be essentially the same as holding that no police report is sufficient, standing alone, to demonstrate that a petitioner possessed more than thirty grams of marijuana. The panel declined to adopt such a categorical rule. Therefore, viewing the circumstances together, the evidence clearly establishes that petitioner possessed more than thirty grams of marijuana.
Court Description: Immigration. Denying Lionel Prince Deon Bogle’s petition for review of a decision of the Board of Immigration Appeals, 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. BOGLE V. GARLAND 3 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 circumstance-specific 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 4 BOGLE V. GARLAND 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 agreed 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, alone, 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 BOGLE V. GARLAND 5 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. 6 BOGLE V. GARLAND
The court issued a subsequent related opinion or order on December 29, 2021.
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