Jaime Salvador Flores-Arellano v. Immigration and Naturalization Service , 5 F.3d 360 ( 1993 )

REINHARDT, Circuit Judge:

Jaime Salvador Flores-Arellano challenges the finding that he is deportable on the basis of a misdemeanor state conviction of being under the influence of amphetamine/methamphetamine. Because we conclude that section 241(a)(2)(B)® of the Immigration and Nationality Act (INA), 8 . U.S.C. § 1251(a)(2)(B)®, plainly reaches under-the-influenee convictions for controlled substances other than marijuana, we deny Flores’ petition for review.

I

Flores, now 29 years old, entered the United States as a permanent resident on April 16,1990. Although this is the official date of his legal immigrant entry to the United States, Flores lived in this country for many years prior to 1990. All of Flores’ parents and siblings are legal permanent residents, and he has two United States citizen children.

On August 13, 1990, Flores pleaded guilty in San Diego Municipal Court to using and being under the influence of amphetamine and methamphetamine on January 8, 1989,¹ in violation of Cal.Health & Safety Code § 11550.² On January 20, 1991, the Immigration & Naturalization Service (INS) issued an order to show cause charging Flores with deportability on the basis of his under-the-influence conviction.³ The Immigration Judge found Flores deportable on August 15, 1991, and he appealed. The Board of Immigration Appeals (BIA) dismissed his appeal on February 4, 1992. Flores petitions for review.

II

INA section 241(a)(2)(B)(i) provides that:

Any alien.who at any time after entry 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 ... other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.

8 U.S.C. § 1251(a)(2)(B)(i). Flores contends that this provision does not render deporta-ble aliens convicted of use or being under the influence of a controlled substance.

The plain language of section 241(a)(2)(B)(i) reaches under-the-influence convictions. The ordinary meaning of the phrase “any law ... relating to a controlled substance” encompasses laws proscribing use or being under the influence of a controlled substance. The provision is not ambiguous, nor does its plain language lead to absurd results or internal statutory inconsistencies. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). Flores’ arguments that we should abandon this plain meaning in interpreting section 241(a)(2)(B)(i) are unpersuasive.

Flores relies on cases from the federal courts and the BIA interpreting a prior version of the statute as not reaching under-the-influence convictions. See Varga v. Rosenberg, 237 F.Supp. 282 (S.D.Cal.1964), cited with approval in Matter of Sum, 13 I & N.Dec. 569, 570 (B.I.A.1970). The previous version interpreted by these cases limited deportability to aliens convicted of trafficking or possession offenses.⁴ In the Anti-Drug Abuse Act of 1986, Congress substituted the broader language now in the statute. See Pub.L. No. 99-570, Subtitle M (Narcotics Traffickers Deportation Act), § 1751(b), 100 Stat. 3207, 3207-47 (1986). Flores argues that Congress did not intend the amendment to overrule precedent excluding under-the-influence convictions from the deportability statute. However, the legislative history surrounding the 1986 amendment of the de-portability statute is inconclusive, lacking the clear indication of a contrary intention necessary to overcome the plain meaning of the post-amendment statute. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434 (1987) (when plain language appears to settle question, only clearly expressed contrary intention in legislative history may overcome “strong presumption” that Congress expresses its intent through language it chooses).

Looking to the structure of the statute, Flores argues that the inclusion of “drug abusers” as an independent deportable class under section 241(a)(2)(B)(ii) demonstrates that Congress did not intend aliens convicted of drug “use” crimes to be deportable under section 241(a)(2)(B)(i). Flores’ contention rests on the conclusion that if drug “use” convictions render an alien deportable, then the provision regarding drug “abuse,” involving more sustained use of controlled substances, would be superfluous. Flores’ argument overlooks the conviction requirement in subsection (i), which renders the grounds for deportability specified in subsections (i) and (ii) logically distinguishable. Subsection (ii) reaches alien drug “abusers” who have not been convicted of a controlled substance offense while subsection (i) reaches all aliens convicted of controlled substance violations, including the use of drugs.

Finally, Flores contends that the legislature’s specified exclusion of single offenses involving possession of a personal-use quantity of marijuana and its omission of a similar exclusion for actual use of marijuana leads to the incongruous result that one conviction of the less serious offense of marijuana use would lead to deportation while one conviction of possession would not.⁵ To avoid imputing such irrationality to our lawmakers, Flores argues that Congress did not interpret the section as reaching any under-the-influence offenses and therefore had no reason to specify an exception for marijuana use.

While the argument has some superficial appeal, there is a much more logical interpretation of section 241(a)(2)(B)(i) that avoids the paradoxical result suggested by Flores: the exception for a single conviction involving personal-use marijuana possession includes an implicit exception for a single conviction of actual personal use of marijuana. Such an interpretation of the statute makes absolute logical sense, but does not affect aliens, like Flores, who are convicted of being under the influence of controlled substances other than marijuana. The inclusion of a limited exception for a single conviction of marijuana possession does not contradict the plain meaning of section 241(a)(2)(B)© as encompassing under-the-influence convictions.

Ill

Because we conclude that INA section 241(a)(2)(B)© renders deportable aliens convicted of use or being under the influence of controlled substances other than marijuana, we deny Flores’ petition, for review.⁶

DENIED.

1 . Although the conduct underlying the conviction both occurred and was charged prior to Flores’ legal immigrant entry, neither party has suggested that that fact affects Flores’ deportability on the basis of his post-entry conviction.

2 . On the same date, Flores pleaded guilty to petty theft for stealing beer from a store on June 11, 1989. Although this conviction was submitted as an exhibit at Flores' deportation hearing, the INS does not contend that the theft conviction independently renders Flores deportable.

3 .The original order to show cause charged Flores with deportability under former section 241(a)(ll) of the INA. That section-was renumbered and revised by the Immigration Act of 1990. See Pub.L. No. 101-649, § 602(a), 104 Stat. 4978, 5080 (1990). The INS- issued an additional charge on April 30, 1991-,■ alleging deportability under section 241(a)(2)(B)(i). The minimal substantive differences between former section 241(a)(ll) and section 241(a)(2)(B) have no effect on our interpretation of the statute as regards the issue in this case.

4 . The statute previously rendered deportable any alien -convicted of violating:

... any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana, or ... any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate.

8 U.S.C. § 1251(a)(11) (repealed 1986).

5 . Drug use has generally been considered a less serious crime than possession. For example, the pre-1986 version of the controlled-substance deportation provision specified "possession of ... marijuana” as a deportable offense, but did not similarly specify use. See infra note 4.

6 . Flores also challenges the denial of his application for suspension of deportation. However, because ten years have not elapsed since the conviction rendering Flores deportable under section 241(a)(2)(B)(i), he is statutorily ineligible for suspension of deportation. See 8 U.S.C. § 1254(a)(2).