Anh Le v. Loretta Lynch

Case: 13-60664 Document: 00513332687 Page: 1 Date Filed: 01/06/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60664 United States Court of Appeals
Fifth Circuit
FILED
ANH LE, January 6, 2016
Lyle W. Cayce
Petitioner Clerk
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
Before STEWART, Chief Judge, and CLEMENT, and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
Petitioner Anh Le (“Le”) appeals the Board of Immigration Appeals’
(“BIA” or the “Board”) decision to uphold an immigration judge’s finding that
Le was statutorily ineligible for adjustment of status under Section
212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (“INA”). The Board
determined that Le failed to demonstrate that he was admissible to the United
States as a lawful permanent resident (“LPR”). Le also appeals the BIA’s
denial of his motion for reconsideration. For the following reasons, the petition
for review is DENIED.
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FACTUAL BACKGROUND
Le escaped Vietnam and arrived in Canada as a refugee in 1978. After
his arrival, he was convicted of two separate criminal offenses. The issues on
appeal stem from Le’s first arrest and conviction in 1991. 1 Le was arrested
after picking up a friend who possessed cocaine while Le was driving his
vehicle. Le was searched for drugs and taken to the police station to be
questioned but no drugs were found on his person. As a result of this arrest,
Le was fined $700 but served no jail time. Records from his arrest showed that
Le was convicted of possession of cocaine, a controlled substance offense,
although Le asserts that he has never used or possessed any illegal drugs. At
the time, Le had been living in Canada for approximately four years and was
studying English. He contends that he had not fully mastered the English
language and that he was not told, nor did he understand, the nature of the
criminal charge against him.
In 2002, Le was admitted to the United States on a thirty-day visitor’s
visa. In May of that same year, he was granted a nonimmigrant waiver of
inadmissibility for one year through 2003, allowing him to remain in the
United States. His wife, Thu Van Nguyen, became a naturalized United States
citizen in 2005 and filed an “immediate relative” visa petition on Le’s behalf in
2008. Le applied for adjustment of his status to lawful permanent resident in
2010 under 8 U.S.C. § 1255(a), based on Nguyen’s approved immediate relative
visa petition. On his application, Le indicated that he was previously
“arrested, cited, charged, indicted, fined, or imprisoned for breaking a[] law or
ordinance” and that he was not pardoned for that offense. He attached a
description of his criminal history that only listed his 1998 offense. 2
1 In 1998, Le was arrested a second time after being approached by a police officer who
found him sitting in an idle car with the motor running while under the influence of alcohol.
2 See supra note 1.
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When reviewing his adjustment of status application, the Department of
Homeland Security (“DHS”) raised the question of whether Le was ineligible
for LPR status due to his 1991 controlled substance offense, pursuant to 8
U.S.C. § 1182(a)(2)(A)(i)(II). The Government challenged Le’s admissibility
and filed four documents in support of its position: a government inspection
worksheet noting that Le was convicted of and received a $700 fine for a drug
possession offense on January 11, 1991; a National Automated Immigration
Lookout System Inquiry noting that Le was refused entry into Toronto and had
at least one conviction for possession; a Canadian fingerprint report showing
Le’s photograph and fingerprint with a summary of a possession of narcotics
charge; and documentation from an Immigration and Naturalization Service
inspector showing that Le was inadmissible when he previously applied for
nonimmigrant status.
Le’s application was denied in April 2008. The Government commenced
removability proceedings in 2009 because Le had remained in the United
States beyond the 2003 expiration date of his nonimmigrant visitor visa. A
Notice to Appear was issued charging Le with remaining longer than
authorized.
PROCEDURAL HISTORY
I. Immigration Judges Law and Walton
At Le’s initial hearing in 2009 before Immigration Judge Phillip Law (“IJ
Law”), Le indicated that he would be seeking adjustment of status to lawful
permanent resident. DHS again raised the question of whether Le was
inadmissible because of his 1991 offense. At a second hearing in 2010, Le
testified about his 1991 arrest in Toronto and stated again that he had no drugs
on his person at the time of his arrest and that he never used, purchased, or
sold illegal drugs. Although Le was represented by an attorney, he did not
have a translator when meeting with counsel prior to his court appearance. Le
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was only able to use a translator while in court. He stated that the translator
explained to him that his classmate was buying and using cocaine, and that
the judge confirmed that because Le was the owner of the vehicle he was
charged as a result of picking up his classmate. Nevertheless, Le testified that
he was not charged with possession of narcotics or possession of cocaine.
Following Le’s testimony before IJ Law, he filed documentation from the
Canadian government indicating that he had received a pardon for his 1991
“Breach of the Narcotic Control Act” conviction and for his subsequent 1998
offense. Le also submitted a letter from the Canadian National Pardon Centre
(“NPC”), which explained that while a pardon “no longer reflect[s] adversely
on that person’s character, and removes any disqualification to which the
individual is subjected,” a pardon “does not erase the fact that an individual
was convicted of an offence(s) and has a criminal record.”
The letter informed Le that a pardon “may not be recognized by foreign
governments” and “will not guarantee entry or visa privileges to another
country.” Le submitted another letter which showed that the NPC cleared his
criminal record from his public file. The letter advised Le that the NPC would
destroy the last open record of his criminal charges from its system if Le did
not contact the NPC within two months. There is no record of Le contacting
the NPC during that two-month period.
In 2011, Le’s case was reassigned to immigration judge Richard Walton
(“IJ Walton”). While testifying before IJ Walton, Le reiterated previous
testimony concerning the 1991 conviction and IJ Walton found that Le’s
testimony was generally consistent with his testimony before IJ Law. IJ
Walton determined, however, that Le was statutorily ineligible for adjustment
of status because he did not meet “his burden of proof to show he was not
convicted of an offense relating to a controlled substance” under 8 C.F.R. §
1240.8(d). IJ Walton found that Le could have, for example, “demonstrated
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that the Canadian Narcotic Control Act encompasses offenses relating to drugs
not defined in our Controlled Substances Act (“CSA”)” or that “the information
contained in each of the [Government] exhibits is somehow incorrect or lacking
in probative value.” IJ Walton emphasized that the documentary evidence
submitted by both Le and the Government “consistently point[ed] to the
existence of a conviction for possession of a controlled substance, perhaps
cocaine.” He found that Le’s testimony that he “did not know why he was
arrested in 1991, and whether it was for a drug offense, [was] insufficient to
overcome the documentary evidence.” He noted that Le’s testimony, “while
credible, was taken over twenty years after an incident where he admitted that
he did not fully understand the charges brought against him because of a
language barrier.” Finally, IJ Walton determined that the Canadian pardon
did not nullify the conviction for United States immigration purposes. Le was
ordered removed to Canada, and he appealed to the BIA.
II. The BIA’s Review
Reviewing the decision de novo, the BIA affirmed IJ Walton’s denial of
the adjustment of Le’s status. The Board stated that it found ample evidence
in the record to support IJ Walton’s finding of a potential disqualifying drug
conviction, including Le’s criminal record print-out reflecting a fine and jail
time on a charge of possession of narcotics and Le’s own submission of a pardon
for his conviction. The BIA noted that, under the REAL ID Act, 8 U.S.C. §
1229a(c)(4)(A); 8 C.F.R. § 1240.8(d), Le bore the burden of resolving any
ambiguities in the record and that it was his burden to show that the drug
involved does not correspond to a controlled substance that would render Le
inadmissible. The Board also agreed with IJ Walton that Le’s testimony did
not satisfy his burden of proof, particularly in light of his admission that he
lacked a clear understanding of the charge.
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Finally, the BIA determined that Le was not relieved of his burden of
proof by asserting that the relevant records concerning his 1991 conviction no
longer existed. Although the Board acknowledged Le’s evidence that court
records of his convictions were no longer available and may have been
destroyed, the BIA noted that “while pardoned conviction records are removed
from public access and may be purged from the archives of local jurisdictions,
sealed records may be retained at the federal level.” The BIA advised Le of his
option to “apply to the Royal Canadian Mounted Police [(“RCMP”)] for the
release of any pardoned conviction records in its possession” and provided the
link to a website with the RCMP’s instructions for obtaining pardoned
conviction records.
Le appealed the BIA’s decision, which the BIA dismissed. Le filed a
motion for reconsideration. The BIA also denied Le’s motion. Le timely
petitioned this court for review of the BIA’s denial. Le now raises two issues:
(1) whether the BIA properly found Le ineligible for adjustment of Le’s
immigration status where there is evidence that Le may have been convicted
of a drug-related offense in Canada; and (2) whether the BIA abused its
discretion when it denied Le’s motion for reconsideration.
STANDARD OF REVIEW
In a petition for review of a BIA decision, we review legal and
constitutional issues de novo. See Sealed Petitioner v. Sealed Respondent, 567
F. App’x 231, 234 (5th Cir. 2014) (citing Enriquez-Gutierrez v. Holder, 612 F.3d
400, 406 (5th Cir. 2010)). Although “we generally only have authority to review
the BIA’s decision, . . . we may also review the [immigration judge’s] decision
when it has some impact on the BIA’s decision, as when the BIA has adopted
all or part of the [judge’s] reasoning.” Id., 567 F. App’x at 234 (citing Enriquez-
Gutierrez, 612 F.3d at 407); see Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997); see also Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012).
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This court applies the substantial evidence standard to the BIA’s findings of
fact. See Soriano v. Gonzales, 484 F.3d 318, 320 (5th Cir. 2007). The
substantial evidence standard requires “that the [BIA’s] conclusion be based
upon the evidence presented and that it be substantially reasonable.”
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996) (citation omitted).
Under this standard, this court will affirm the BIA unless the “evidence
compels a contrary conclusion” and is so compelling that no reasonable
factfinder could conclude against it. Id.
We review the BIA’s denial of a motion to reconsider under a highly
deferential abuse of discretion standard. See Lara v. Trominski, 216 F.3d 487,
496 (5th Cir. 2000); Osuchukwu v. INS, 744 F.2d 1136, 1141–42 (5th Cir. 1984).
The court will not find an abuse of discretion unless the decision is “capricious,
racially invidious, utterly without foundation in the evidence, or otherwise so
aberrational that it is arbitrary rather than the result of any perceptible
rational approach.” Osuchukwu, 744 F.2d at 1142.
DISCUSSION
I. Whether the BIA properly found Le ineligible for
adjustment of status where there is evidence that Le may
have been convicted of a drug-related offense in Canada.
We first address whether Le’s 1991 conviction renders him ineligible for
relief from removal. As a preliminary issue, the Government argues that Le is
inadmissible because Le committed a controlled substance offense in violation
of 8 U.S.C. § 1182(a)(2)(A)(i)(II). An alien who was inspected and admitted or
paroled into the United States may seek adjustment of status in order to obtain
permanent resident status in the United States. See 8 U.S.C. § 1255(a). The
INA provides that an alien may have his status changed to lawful permanent
resident if: “(1) the alien makes an application for such adjustment, (2) the
alien is eligible to receive an immigrant visa and is admissible to the United
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States for permanent residence, and (3) an immigrant visa is immediately
available to him at the time his application is filed.” 8 U.S.C. § 1255(a).
However, an alien is ineligible for adjustment of status if the alien is
convicted of, admits having committed, or admits committing acts which
constitute the essential elements of a violation of any law relating to a
controlled substance. 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), (h), 1255(c)(2), (h); Rana
v. Holder, 654 F.3d 547, 548 (5th Cir. 2011).
The propriety of the BIA’s decision regarding Le’s adjustment of status
and relief from removal rests on three sub-issues raised on appeal: (1) whether
the alien or the Government bears the burden of proof in determining whether
grounds for mandatory denial of Le’s application for relief do not apply; (2)
whether the evidence shows that this burden has been met; and (3) what effect,
if any, Le’s pardon has on his admissibility.
A.
Le contends that while an alien generally bears the burden of proving
that grounds for denial do not apply and that he is eligible for relief from
removal, he does not bear the burden of proof in this instance because the
statute proscribing Le’s conduct only “allocate[s] the burden of proof
concerning factual elements of eligibility.” Le contends that determining
eligibility, i.e., whether he was convicted of an offense relating to a controlled
substance, is a “question of law” and thus a burden which the Government
must bear. Le states that the burden of proof would have remained on him
unless the immigration judge or the BIA requested supporting documentation
that could not reasonably be obtained. Le argues that because he could not
obtain any additional information regarding his conviction, the ambiguity
weighs in favor of finding that his offense did not relate to a controlled
substance. Le’s position on appeal is rooted in Supreme Court cases Moncrieffe
v. Holder and Descamps v. United States, decided after the submission of Le’s
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brief to the BIA. Descamps v. United States, 133 S. Ct 2276 (2013); Moncrieffe
v. Holder, 133 S. Ct. 1678 (2013).
The Government counters that 8 U.S.C. § 1229a(c)(4)(A)(i) plainly places
the burden on Le. The Government disagrees with Le’s contention that Section
1229a only “allocate[s] the burden of proof concerning factual elements of
eligibility.” It alleges that the statutory language does not divide the eligibility
requirements for relief between those that involve a factual and legal
determination, but it solely applies to “the applicable eligibility requirements”
as a whole. This includes the requirement that an alien demonstrate that he
is not inadmissible for having a disqualifying conviction.
As a general rule, the Government may remove an alien and deny his
application for adjustment of status if grounds for mandatory denial of the
application may exist. See 8 C.F.R. § 1240.8(d) (emphasis added). However,
an alien may apply for relief or protection from this removal. See 8 U.S.C §
1229a(c)(4)(A). While the Government bears the burden of proving that an
alien is removable, § 1229a(c)(3)(A), the alien has the burden of proof to
establish that he satisfies the applicable eligibility requirements in order to
prove that any grounds for denial do not apply. § 1229a(c)(4)(A); see also 8
C.F.R. § 1240.8(d) (noting that the alien in a removal proceeding bears “the
burden of establishing that he or she is eligible for any requested benefit or
privilege and that it should be granted in the exercise of discretion”); Ramon-
Torres v. Holder, 637 F.3d 544, 548 (5th Cir. 2011); Vasquez-Martinez, 564 F.3d
at 715–16; Matter of Blas, 15 I&N Dec. 626, 629 (BIA 1974). When an alien’s
prior conviction is at issue, the offense of conviction itself “is a factual
determination, not a legal one.” Vasquez-Martinez v. Holder, 564 F.3d 712, 716
(5th Cir. 2009). However, determining whether that conviction is a particular
type of generic offense is a legal question. See, e.g., Esparza-Rodriguez v.
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Holder, 699 F.3d 821, 823–24 (5th Cir. 2012); Vasquez-Martinez, 564 F.3d at
716–17.
In Vasquez-Martinez, for example, an alien appealed the BIA’s
determination that he produced insufficient evidence to carry his burden of
proving that he was not an aggravated felon and therefore was ineligible for
cancellation of removal under 8 U.S.C. § 1229b(a)(3). See 564 F.3d at 715–16.
The alien argued that the burden of production was on the Government to
submit evidence of a prior aggravated felony conviction. Id. at 716. Relying
on 8 U.S.C. § 1229a(c)(4)(A)(i) and 8 C.F.R. § 1240.8(d), this court held that the
alien, not the Government, bears “the initial burden of production of evidence”
that he is eligible for discretionary relief. Id.
Other circuits similarly hold that an alien seeking relief from removal
bears the burden of proving that a conviction does not bar relief, even where
ambiguities in the record about an alien’s conviction exist. See Garcia v.
Holder, 584 F.3d 1288, 1289–90 (10th Cir. 2009). In Garcia, the Tenth Circuit
reasoned that construing ambiguity in the record against the Government
“effectively nullifies the statutorily prescribed burden of proof” and that “[t]he
fact that [the alien] is not to blame for the ambiguity surrounding his criminal
conviction does not relieve him of his obligation to prove eligibility for
discretionary relief.” Id. at 1290. Similarly, the Fourth Circuit has held that,
where the evidence of conviction is inconclusive, the burden remains on the
alien to prove eligibility for relief from removal. See Salem v. Holder, 647 F.3d
111, 116–20 (4th Cir. 2011).
Notwithstanding the general rule, Le cites, inter alia, the Second
Circuit’s decision in Martinez v. Mukasey as supporting his position that the
Government bears the burden to resolve any ambiguities in an inconclusive
record. See 551 F.3d 113 (2d Cir. 2008). However, Martinez does not clearly
state that the burden shifts to the Government to prove a lack of eligibility for
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relief where a record is inconclusive. In Martinez, the court held that in an
alien’s attempt to prove his burden, he must “show[] that he has not been
convicted of [the underlying criminal offense].” Id at 122. Contrary to Le’s
contention, the court did not shift the burden to the Government, but stated
that in proving its burden, the alien may not delve into the particular facts
surrounding his conduct when determining whether his burden is met, but
must solely look to the language in the statute of conviction. 3 Id.; accord
Salem, 647 F.3d at 116–17 (concluding that fidelity to the INA requires that
the noncitizen, as the party bearing the burden of proof, suffer the detriment).
Le also highlights that the Ninth Circuit provides some guidance
supporting his position. The Ninth Circuit has held that where the categorical
approach applies, discussed supra, the Government must prove that the alien’s
prior offense of conviction constitutes a generic offense that disqualifies him
from relief, thus shifting the burden to the Government. See Almanza-Arenas
v. Holder, 771 F.3d 1184, 1190, 1193 (9th Cir. 2014), en banc reh’g granted, 785
F.3d 366 (May 8, 2015). The Almanza-Arenas court applied the categorical
approach to determine whether the alien’s prior conviction for taking or driving
another’s vehicle (joy-riding) “temporarily or permanently” precluded
cancellation of removal as a “generic” crime of moral turpitude. 771 F.3d at
3 In Martinez, the court used the categorical approach to address the issue of the
alien’s conviction. In applying this approach, courts “compare the elements of the statute
forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime.”
Descamps, 133 S. Ct. at 2281. The categorical approach mandates that the adjudicator look
only to the statute of conviction to determine whether the minimum conduct required under
the statute meets the generic definition of the offense. Courts “look not to the facts of the
particular prior case, but instead to whether the . . . statute defining the crime of conviction
categorically fits within the ‘generic’ federal definition of a corresponding [offense].”
Moncrieffe, 133 S. Ct. at 1684 (internal quotation marks and citation omitted); Cisneros-Perez
v. Gonzales, 465 F.3d 386, 391 (9th Cir. 2006). On the other hand, courts that review an
alien’s conviction using the modified categorical approach employ a different standard.
Restrepo v. Att’y Gen. of U.S., 617 F.3d 787, 791 (3d Cir. 2010) (quoting United States v.
Stinson, 592 F.3d 460, 462 (3d Cir. 2010)); Descamps, 133 S. Ct at 2282, 2285.
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1189–90. The court relied on Moncrieffe, 133 S. Ct. at 1693, to hold that
ambiguity in the record concerning whether a prior conviction is deemed an
aggravated felony is construed against the Government, notwithstanding the
alien’s burden of proof under § 1229a(c)(4)(A)(i). See Almanza-Arenas, 771
F.3d at 1189, 1192–94.
Moncrieffe, however, does not control. In Moncrieffe, although the Court
noted that a prior conviction for an aggravated felony is grounds both for
removal and denial of discretionary relief from removal, the only issue before
the court was the alien’s removability. See 133 S. Ct. at 1682–83. The Court
stated in a footnote that the approach used “is the same” in both contexts. Id.
at 1685 n.4. However, this commentary was dicta because the issue of who
bears the risk of an inconclusive record when determining an alien’s eligibility
for relief was not before the Court. Id. The case at bar, unlike Moncrieffe,
concerns eligibility for relief from removal and not removal itself.
Similarly, Almanza-Arenas is inapposite. The court in Almanza-Arenas
used the modified categorical approach to determine whether a particular
offense qualified as a crime of moral turpitude rendering the alien ineligible
for cancellation of removal. 771 F.3d at 1192. Le contends, however, that the
categorical approach, and not the modified categorical approach, should be
used to determine his eligibility for relief from removal. The distinction is
significant if relying on Almanza-Arenas. Where a “statute criminalizes
different kinds of conduct, some of which would constitute [a criminal offense]
while others would not, the court must apply a modified categorical approach
. . . look[ing] beyond the statutory elements to determine the particular part of
the statute under which the defendant was actually convicted.” Restrepo v.
Att’y Gen. of U.S., 617 F.3d 787, 791 (3d Cir. 2010) (quoting United States v.
Stinson, 592 F.3d 460, 462 (3d Cir. 2010)). This approach specifically applies
to divisible statutes, or statutes that “set out one or more elements of the
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offense in the alternative,” effectively creating “several different . . . crimes.”
Descamps, 133 S. Ct at 2282, 2285. In such instances, courts have “conducted
a limited factual inquiry, examining the record of conviction for the narrow
purpose of determining the specific [elements] under which the defendant was
convicted.” Jean–Louis v. Att’y Gen. of U.S., 582 F.3d 462, 466 (3d Cir. 2009)
(referencing Singh v. Ashcroft, 383 F.3d 144, 162 (3d Cir. 2004)).
In Almanza-Arenas, the record indicated that a conviction stated that
the alien was convicted of “temporarily or permanently” taking a vehicle, only
one of which (permanently) is deemed a crime of moral turpitude. 771 F.3d at
1192. The court construed the resulting ambiguity in the alien’s favor because
of the inability to determine which of the two convictions the alien had
received. Id. Unlike the record in Almanza-Arenas, there is no evidence that
Le was convicted under a divisible statute that happened to also include
possession of cocaine. The same ambiguity in Almanza-Arenas is not present
and we need not apply the modified categorical approach or construe any
ambiguity in favor of Le. 4 Notwithstanding the inconclusive evidence in the
instant case, we conclude that the burden remains on Le to prove eligibility for
relief from removal.
B.
Next, having established that the burden is on Le to show that he is
eligible for relief, and treating his offense as an offense for the possession of
cocaine, we now look to whether he has satisfied that burden, reviewing de
novo whether the offense qualifies as an offense relating to a controlled
substance under the INA. See Vasquez-Martinez, 564 F.3d at 717. In order for
an alien to satisfy his burden of proving that grounds for mandatory denial of
an application for relief do not apply, he must
4 A petition for rehearing in Almanza-Arenas has been granted.
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comply with the applicable requirements to submit information or
documentation in support of [his] application for relief . . . as
provided by law or by regulation or in the instructions for the
application form. In evaluating the testimony of the applicant . . .
in support of the application, the immigration judge will determine
whether or not the testimony is credible, is persuasive, and refers
to specific facts sufficient to demonstrate that the applicant has
satisfied [his] burden of proof. In determining whether the
applicant has met such burden, the immigration judge shall weigh
the credible testimony along with other evidence of record. Where
the immigration judge determines that the applicant should
provide evidence which corroborates otherwise credible testimony,
such evidence must be provided unless the applicant demonstrates
that [he] does not have the evidence and cannot reasonably obtain
the evidence.
8 U.S.C. § 1229a(c)(4)(B) (emphasis added). 5
Because the INA does not define the phrase “relating to a controlled
substance” and legislative history does not fully clarify which crimes Congress
intended to characterize as relating to a controlled substance, the
interpretation of this provision is within the purview of the BIA and the
interpretation of its application to state and federal laws remains with the
federal courts. See Esparza-Rodriguez v. Holder, 699 F.3d 821, 823 (5th Cir.
2012).
Le contends that the BIA erred in determining that he failed to establish
eligibility for adjustment of status because he “may have” been convicted of an
offense relating to a controlled substance. Le argues that because he has
repeatedly, consistently and credibly denied ever having possessed, sold,
5 The standards for burdens of proof and credibility for adjudicating applications for
discretionary relief were amended by the REAL ID Act of 2005 and apply to applications
made on or after May 11, 2005. REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat.
231 (2005); see also Matter of S-B-, 24 I&N Dec. 42, 42 (BIA 2006). Under the REAL ID Act,
the testimony of the applicant may be sufficient to sustain his burden without corroboration,
but only if the applicant satisfies the trier of fact that his testimony is credible, persuasive,
and refers to specific facts sufficient to demonstrate that the applicant has satisfied his
burden of proof. See INA § 240(c)(4)(B).
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purchased or used any illegal drugs, he has not “admitted” committing a
criminal offense or the essential elements of an offense related to a controlled
substance. Therefore, if he is inadmissible, it may only be because he has been
actually convicted of such an offense. Le argues that he has proven by a
preponderance of the evidence that the aforementioned grounds for conviction
do not apply. Le also alleges that requiring otherwise would require him to
“prove a negative”: Despite his testimony and despite the ambiguities on the
record, he was not convicted of a controlled substance offense.
The Government counters that there is substantial record evidence to
support the immigration judge’s determination that Le may have sustained a
conviction under Canada’s Narcotic Control Act. Contrary to Le’s contention
that “there is no evidence of a conviction in this case” or that the record is
“ambiguous” as to whether Le sustained a conviction under Canada’s Narcotic
Control Act, the Government highlights that the following is evidence of Le’s
failure to identify the statutory basis of his conviction and failure to show that
there was no nexus between his conviction and a controlled substance: (1) Le
submitted evidence of a pardon for his conviction; (2) DHS submitted evidence
corroborating the Parole Board’s conclusion that Le did in fact have a drug-
related conviction, as shown in his criminal conviction printout; and (3) DHS
produced evidence showing that United States immigration officials recognized
Le’s conviction as one involving a controlled substance. The BIA determined
that Le failed to meet this burden due to the presence of such overwhelming
evidence to the contrary.
In order for Le to meet his burden, he is required to first identify the
statute under which his criminal offense arises, something Le has failed to do.
Peters v. Ashcroft, 383 F.3d 302, 307 (5th Cir. 2004); Vasquez-Martinez, 564
F.3d at 716–17. Here, Le does not present evidence demonstrating whether he
was convicted under a Canadian federal statute, a provincial law, or even a
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Toronto city ordinance. The record contains no judgment, and any
documentation that the immigration judge and the BIA sought from Le in
support of his position that his burden has been met is seemingly unavailable
or cannot be produced. Despite Le’s contention that he could not have been
convicted of such an offense, the record includes a conviction for possession of
cocaine and Le provides no statutory basis for his 1991 conviction that
comprises of something other than a drug offense. This presentation of an
inconclusive record of conviction is insufficient to meet his initial burden of
demonstrating eligibility.
Second, Le must demonstrate that no nexus existed between his statute
of conviction and the controlled substance offense pursuant to 8 U.S.C. §
1182(a)(2)(A)(i)(II). Peters, 383 F.3d at 307. Controlled substances include any
drug or other substance, or immediate precursor, included in Schedule I, II,
III, IV, or V of 21 U.S.C. § 812. We have held that possession of cocaine is an
offense relating to a controlled substance. See Enriquez-Gutierrez, 612 F.3d at
403. Various courts, including this court, have also granted an expansive
reading of what constitutes “relating to” under federal law. Mellouli v. Lynch,
135 S. Ct. 1980, 1990 (2015); Luu–Le v. INS, 224 F.3d 911, 915–16 (9th Cir.
2000) (“We have construed the ‘relating to’ language broadly in the past.”); see
also Peters, 383 F.3d at 306–07 (Congress[] [has made] consistent effort[s] to
target aliens who are involved in drug-related activities.”); Coronado–Durazo
v. INS, 123 F.3d 1322, 1326 (9th Cir. 1997) (stating that Congress has
expressed great zeal in eliminating illicit drug trafficking and has “clearly
spoken against aliens who abuse the hospitality of the United States” in this
way).
In Mellouli v. Lynch, the Supreme Court recognized that a conviction for
an offense “relating to a controlled substance” must be rooted in there being a
direct link between an alien’s crime of conviction and a particular federally
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controlled drug. See 135 S. Ct. at 1990. Where the government does not show
that a conviction relates to a substance listed in the federal controlled
substance schedules, an individual convicted of a state drug paraphernalia
offense is not deportable under the deportability ground for conviction of an
offense “relating to” a controlled substance. Id. It is not enough that the
foreign statute of conviction bears some general relation to federally controlled
drugs. Id. In Peters, for example, we considered identical statutory language
in the removal context and determined that a prior conviction for soliciting the
transportation of at least two pounds of marijuana “on its face constitute[d] a
violation of a law ‘relating to a controlled substance,’” rendering the alien
removable under 8 U.S.C. § 1227(a)(2)(B)(i). Peters, 383 F.3d at 306–07. We
did not review the statute using the categorical approach.
The Third Circuit addressed a line of cases in which the relevant federal
conduct is presented not as a generic, unitary crime requiring analysis under
the categorical approach, but as a conviction “relating to” other crimes or
objects. See Rojas v. Att’y Gen. of the U.S., 728 F.3d 203, 215, 217 (3d Cir. 2013)
(en banc). The inquiry did not focus on a strict element-by-element match
between the offense of conviction and the federal baseline, but focused on the
nature of the defendant’s conviction and whether it “stand[s] in relation,”
“pertain[s,]” has “bearing of concern,” or “refer[s]” to the object or crime of
comparison. Id. at 217 (citing Desai v. Mukasey, 520 F.3d 762, 764 (7th Cir.
2008)).
Here, evidence supports the BIA’s finding that Le failed to meet his
burden. Le’s evidence of conviction is as follows: Le was pardoned for multiple
“conviction(s)”; the secondary inspection worksheet reflected that Le has a
“conviction for drug possession”; and a RCMP document pertaining to the 1991
offense was entitled “Criminal Convictions Condi[tio]nal and Absolute
Discharges and Relating Information.” Moreover, Le pleaded guilty to
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possessing cocaine. While the immigration judge and the BIA found that Le
provided credible testimony, and despite Le’s compliance with other
requirements of the INA, including submitting documentation concerning his
criminal offenses and submitting biometric information for required
background checks, Le is unable to provide documentation that could
completely dispel the evidence presented showing that he was in fact convicted
of possession of a narcotic. Moreover, in a final comment, the immigration
judge suggested to Le that he apply to the RCMP for the release of any
pardoned conviction records in its possession. There is no record evidence that
Le has done so.
In light of Mellouli, Peters, and Rojas, Le’s burden to prove that his
conviction did not relate to a controlled substance could have been met, for
example, by showing either that he was not convicted of the listed offense, or
that his conviction did not involve a drug listed in the federal controlled
substance schedules. Although Mellouli did not address relief from removal,
we construe the term “relating to” in the same way as the Mellouli court. The
aforementioned evidence, without more, shows a failure by Le to establish that
his offense does not “stand in relation,” “pertain,” have “bearing of concern,” or
“refer” to a controlled substance. Le’s inability to show a conviction for an
offense other than the possession of cocaine, which is a Schedule I controlled
substance, weighs strongly against him. In the absence of anything to the
contrary, Le has not met his burden.
C.
Le contends that the 2008 pardon of his 2001 offense indicates that he
has no conviction for an offense relating to a controlled substance. We conclude
that the BIA did not err in determining that Le’s pardon by the Canadian NPC
has no bearing on his conviction for immigration purposes. As the Government
notes, foreign pardons are generally not recognized under United States
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immigration laws. See Danso v. Gonzales, 489 F.3d 709, 717 (5th Cir. 2007).
Other circuits have held that an alien’s conviction remains valid for
immigration purposes even where a foreign law essentially expunges or
pardons the conviction because drug offense pardons are not recognized under
the INA. See Mullen-Cofee v. INS, 976 F.3d 1375, 1379 (11th Cir. 1992)
(holding that a Canadian pardon, in itself, does not wipe out an alien’s foreign
conviction or relieve him from disabilities flowing from that conviction). We
conclude that Le’s pardon does not serve to eradicate his 1991 controlled
substance conviction. In sum, the record supports a finding that the BIA did
not err in determining that Le was inadmissible due to his 1991 conviction.
Accordingly, we reject Le’s argument that his conviction does not render
him ineligible for relief from removal and DENY his petition for review on this
ground. 6
II. Whether the BIA abused its discretion when it denied Le’s
motion for reconsideration.
Le also contends that the BIA abused its discretion in denying his motion
for reconsideration. This court reviews the BIA’s denial of a motion to
reconsider under a highly deferential abuse of discretion standard. Lara, 216
F.3d at 496; Osuchukwu, 744 F.2d at 1141–42. Le has failed to overcome this
standard. Pursuant to 8 U.S.C. § 1255(a), an alien is entitled to an adjustment
6 For the first time on appeal, the Government also contends that even if Le can meet
the eligibility requirements of 8 U.S.C. § 1255(a), Le’s adjustment of status is barred by INA
§ 245(c)(2) because Le failed to continuously maintain a lawful immigration status prior to
filing for adjustment of status to lawful permanent resident. Generally, “[t]his [c]ourt will
not consider [ ] claim[s] raised for the first time in a reply brief.” Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993); see also Hernandez-Flores v. Holder, 488 F. App’x 847, 848 (5th Cir.
2012); Falek v. Gonzales, 475 F.3d 285, 289 (5th Cir. 2007). This court will only review
reasons provided by the agency for its actions, and not post hoc appellate arguments of
counsel. See INS v. Ventura, 537 U.S. 12, 16–17 (2002). The BIA did not review nor base its
denial of Le’s adjustment of status on INA § 245(c)(2) and its requirements. Accordingly, this
Court lacks jurisdiction to review this claim.
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of status at the Attorney General’s discretion “if (1) the alien makes an
application for such adjustment, (2) the alien is eligible to receive an
immigration visa and is admissible to the United States for permanent
residence, and (3) an immigrant visa is immediately available to [the alien] at
the time his application is filed.” Even if Le’s visa application was approved
and an immigrant visa was immediately available to him, Le has not
established that he is admissible to the United States for permanent residence.
See 8 U.S.C. §§ 1101(b)(1), 1253(a). As the record indicates, neither Le’s
pardon, the letter produced to show the unavailability of additional municipal
court records, nor Le’s testimony were sufficient to show that he does not have
a disqualifying conviction. The BIA’s decision was based squarely on this
evidence presented in the record, which supported its earlier decision. In view
of the evidence, we conclude that the BIA did not abuse its discretion in
denying Le’s motion for reconsideration. Accordingly, Le is not entitled to
review of the BIA’s decision and we DENY Le’s petition for review on this
ground.
CONCLUSION
For the reasons set forth above, we DENY Le’s petition for review.
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