Lionel Bogle v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIONEL PRINCE DEON BOGLE, No. 19-72290
Petitioner,
Agency No.
v. A086-972-722
MERRICK B. GARLAND, Attorney
General, ORDER AND
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 7, 2020
Portland, Oregon
Filed December 29, 2021
Before: Mark J. Bennett and Eric D. Miller, Circuit Judges,
and Benita Y. Pearson, * District Judge.
Order;
Opinion by Judge Bennett;
Dissent by Judge Pearson
*
The Honorable Benita Y. Pearson, United States District Judge for
the Northern District of Ohio, sitting by designation.
2 BOGLE V. GARLAND
SUMMARY **
Immigration
The panel filed (1) an order withdrawing the opinion and
dissent filed on June 23, 2021, denying a petition for panel
rehearing, and denying on behalf of the court a petition for
rehearing en banc; and (2) an amended opinion denying
Lionel Prince Deon Bogle’s petition for review of a decision
of the Board of Immigration Appeals. In the amended
opinion, 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
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BOGLE V. GARLAND 3
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.
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
4 BOGLE V. GARLAND
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
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 joined the majority in
concluding 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 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.
BOGLE V. GARLAND 5
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 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.
COUNSEL
Kari E. Hong (argued), Boston College Law School,
Newton, Massachusetts, for Petitioner.
David Kim (argued) and Aric A. Anderson, Trial Attorneys;
Kohsei Ugumori, Senior Litigation Counsel; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
Raha Jorjani and Kelsey Morales, Alameda County Public
Defender’s Office, Oakland, California; Francisco Ugarte
and Genna Beier, San Francisco Office of the Public
Defender, San Francisco, California; for Amici Curiae
Alameda County Public Defender’s Office, Bronx
Defenders, Brooklyn Defender Services, City of Atlanta
Office of the Public Defender, The Legal Aid Society, The
San Francisco Public Defender’s Office, and Stand Together
Contra Costa.
6 BOGLE V. GARLAND
ORDER
The opinion and dissent filed on June 23, 2021, and
published at 2 F.4th 1172 (9th Cir. 2021) are withdrawn. A
new opinion and dissent are filed concurrently with this
order.
Petitioner has filed a petition for panel rehearing and a
petition for rehearing en banc. [Dkt. No. 63]. A majority of
the panel votes to deny the petition for panel rehearing.
Judges Bennett and Miller vote to deny the petition for panel
rehearing, and Judge Pearson votes to grant the petition for
panel rehearing. Judges Bennett and Miller also vote to deny
the petition for rehearing en banc, and Judge Pearson
recommends granting the petition. The full court has been
advised of the petition for rehearing en banc, and no judge
of the court has requested a vote on en banc rehearing. See
Fed. R. App. P. 35(f).
The petition for panel rehearing and rehearing en banc is
DENIED. No further petitions for rehearing or rehearing en
banc will be entertained.
OPINION
BENNETT, Circuit Judge:
Lionel Prince Deon Bogle, a native and citizen of
Jamaica, seeks review of the dismissal by the Board of
Immigration Appeals (BIA) of his appeal from the
immigration judge’s (IJ) order of removal and denial of his
application for cancellation of removal. We have
jurisdiction pursuant to 8 U.S.C. § 1252 and deny the
petition.
BOGLE V. GARLAND 7
In general, a drug conviction is a removable offense
under 8 U.S.C. § 1227(a)(2)(B)(i). However, under the
personal-use exception of § 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
possession of more than one ounce of marijuana. One ounce
is 28.35 grams, so viewing Bogle’s plea alone, it is possible
that the personal-use exception applies. But the relevant
police report states that Bogle was in possession of 47.12
ounces of marijuana—that is, 1335.852 grams—about
4300% over the thirty-gram limit.
The issue we must first decide is whether the categorical,
modified categorical, or circumstance-specific approach
applies to the personal-use exception’s thirty-gram limit. If
the categorical approach applies, Bogle’s offense did not
categorically involve the possession of more than thirty
grams of marijuana, and our analysis stops there. If the
modified categorical approach applies, we could look at
certain relevant documents, but likely not the police report.
See United States v. Almazan-Becerra, 537 F.3d 1094, 1097
(9th Cir. 2008). If the circumstance-specific approach
applies, we would then decide whether the circumstances
specific to this case establish by clear and convincing
evidence that Bogle’s offense involved the possession of
more than thirty grams of marijuana.
This is a matter of first impression in this circuit, and we
conclude that the circumstance-specific approach applies to
the thirty-gram limit of § 1227(a)(2)(B)(i)’s personal-use
exception. We further conclude that the circumstances
specific to this case clearly establish that the amount of
marijuana in Bogle’s possession exceeded thirty grams.
8 BOGLE V. GARLAND
I. FACTS
The circumstances are the following.
Bogle entered the United States in 2006 and became a
lawful permanent resident in 2010. In 2014, he was arrested
in Georgia for possession with intent to distribute more than
one ounce of marijuana. The police report states that the
officers found, in the rental car that Bogle was driving, three
“gallon[-]size plastic bags . . . [containing] a green leafy
material.” The police report also states: “The three
gallon[-]size plastic bags contain[ing] the green leafy
material tested positive for marijuana. Bag number 1’s net
weight was 446.6 grams, bag number two’s net weight was
450.5 grams and bag number three’s net weight was 438.8,
totaling 47.12 ounces equaling 2.94 pounds, with a street
value of $9000.00.” Bogle received a “conditional
discharge” for this offense by pleading guilty to possession
of more than one ounce of marijuana under a Georgia statute
that allows a court to place certain defendants on probation
without a formal adjudication of guilt, in exchange for a
guilty plea. See Ga. Code § 16-13-2(a). Under the statute,
compliance with the conditions of probation guarantees the
discharge of all charges relating to the offense once the term
of probation expires, and that discharge “[is not] deemed a
conviction for purposes” of Georgia law. See id.
In 2016, the government initiated removal proceedings
against Bogle under § 1227(a)(2)(B)(i) based on his
controlled substance offenses, 1 and in 2019, the IJ found him
1
Originally, the removal proceedings were based on two separate
offenses: Bogle’s offense in Georgia and a 2010 Arizona conviction for
the attempted sale or transportation of marijuana. According to the
incident report for the Arizona conviction, there were five pounds of
BOGLE V. GARLAND 9
removable. In those proceedings, the IJ considered Bogle’s
testimony and all forty-two exhibits that had been
admitted—including those admitted in Bogle’s 2017
hearings before a different IJ, and including the transcripts
of Bogle’s prior testimony in those hearings.
When Bogle testified in 2019, he never claimed the
entire Georgia police report was inaccurate. Rather, he made
a point to clarify that only parts of it were: “As to the police
report especially in Georgia, Your Honor, I—it’s not
accurate. It’s not fully accurate, Your Honor.” (Emphasis
added). In his decision, the IJ noted the inaccuracies Bogle
alleged:
marijuana in the car Bogle was driving, along with receipts for two small
shipping boxes and packing peanuts. Arizona later set aside Bogle’s
judgment of guilt for this offense, and in 2019, the IJ concluded that the
conviction could not be considered for removal purposes, given that the
government did not address the Arizona conviction in its brief and thus
had “not met its burden to prove” that the “conviction was vacated solely
for rehabilitative reasons or reasons related to [Bogle’s] immigration
status.” See Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir.
2011). Nevertheless, the IJ still found, based on the facts underlying the
vacated conviction, that there was “reason to believe [Bogle] was
involved in drug trafficking” in Arizona. Plainly read, Bogle’s testimony
in 2019 compels the IJ’s conclusion. Bogle, who was counseled at the
time, stated: “I got [the marijuana]—well, someone gave it to me to keep.
Pick it up at Phoenix, and they would just pay me like $300 to $500 just
to hold it and then they will pick it up back from me.” He also admitted:
“I know there’s marijuana in the bag. For sure, I know there’s marijuana
in the bag, Your Honor, and I accept the marijuana and took it back to
Chandler. That much I did, Your Honor.”
We do not consider the Arizona conviction a “circumstance specific
to this case.” And we need not decide whether the facts underlying that
conviction and Bogle’s testimony about them are circumstances specific
to this case.
10 BOGLE V. GARLAND
[Bogle] did not say someone would tell him
where to bring the vehicle when he got to
Thompson; he did not get paid $180 to make
the trip, but had $180 with him when
arrested; he did not admit to the police that he
knew marijuana was in the vehicle; and he
did not tell the police he did it to make some
extra money.
Bogle never disputed that nearly three pounds of marijuana
were found in the car he was driving, as recorded in the
police report.
Nor could he, as his testimony was directly to the
contrary:
Petitioner: [T]he rental car was not in my
name. There was no evidence that I knew the
marijuana was in the car.
***
IJ: You’re telling me that the 2014 case when
you’re in Georgia, driving a car, and all this
marijuana in it just happened to be bad luck.
You won the reverse lottery? Is that what you
want me to believe?
***
Petitioner: Yes, Your Honor because–
***
BOGLE V. GARLAND 11
Petitioner: Because I didn’t, I didn’t—as I
said, I—as I told the Honorable Judge before,
the cops said they found it in secret
compartment. I didn’t know it was a secret
compartment in the vehicle, Your Honor. . . .
I admit there was marijuana in the car, and I
admit to it but did I knowingly get in the car
and drove it knowing that marijuana was
there, no, I did not. I just did not, your Honor.
(Emphasis added). The only fair reading of this exchange is
that Bogle claimed he did not know the three pounds of
marijuana were in the car—not that Bogle claimed the three
pounds were actually thirty grams or fewer. Some of
Bogle’s statements can only be reasonably interpreted as
admissions that three pounds of marijuana were in the car,
as described in detail in the police report—particularly his
affirmative answer to the IJ’s question about whether “all
this marijuana in [the car Petitioner had rented and was
driving] just happened to be bad luck” and his admission “I
admit there was marijuana in the car, and I admit to it.”
In Bogle’s 2017 testimony as well, he disputed that he
knowingly possessed the marijuana in the rental car. He
testified: “I didn’t consciously knowingly get into that car
and drove it with knowing that marijuana was there. I admit
I had possession of the car and it had possessed the
marijuana, but I didn’t consciously and knowingly get into
that car that night knowing it was there.” (Emphasis added).
Bogle’s counsel added: “The [Petitioner] has consistently
contested the police report from [Georgia] as to whether or
not he knew the marijuana was in the car in 2014.”
(Emphasis added). In other words, Bogle vigorously
contested his knowledge of the marijuana in the rental car,
but he never contested the amount of marijuana recovered
12 BOGLE V. GARLAND
from the car. In fact, in 2017, Bogle expressly
acknowledged the amount of some of the marijuana in the
rental car. He testified that the police found a “little” bag of
marijuana, “[n]othing more than say 40, 40 grams,” in
addition to the marijuana they later found “hidden in the
firewall of the car.” (Emphasis added).
It was against this backdrop that the IJ considered the
Georgia police report. The police report recorded the
quantity of marijuana at over 1300 grams—1270 grams
greater than the thirty-gram cutoff for the personal-use
exception to apply. And contrary to Bogle’s testimony
before the IJs that he did not know the marijuana was in the
car, 2 the police report states that Bogle “told [the officer] that
he knew that drugs [were] in the car and only did it to make
some extra money.” And, according to the report, there was
“a very strong odor of marijuana coming from inside of the
car,” which was a rental that Bogle was borrowing to drive
from Atlanta to Augusta and back to Atlanta “for a friend.”
Upon inspecting the rental agreement, the officer “saw that
[the vehicle] had been rented by someone else and that
Bogle’s name had not been added as a person permitted to
drive it.” “Bogle was extremely nervous and breathing
heavy . . . [with] his carotid artery pulsating on the right side
2
Both the 2017 IJ and the 2019 IJ found that Bogle’s testimony was
not credible, because it was “inconsistent, implausible, and contained
admissions to prior dishonesty to police officers regarding his actions.”
For example, while Bogle testified in 2019 that he was not paid $180 for
the trip in 2009, he testified in 2017 that he was. The 2019 IJ
summarized: “In [Bogle’s] previous proceedings in this matter, IJ Davis
found [Bogle] ‘was not only not credible, but he was less than honest.’
Here, the Court also finds [Bogle] was not credible in the additional
testimony he provided to the Court.” This, too, is part of the
circumstances specific to this case.
BOGLE V. GARLAND 13
of his neck.” He told the officer he had been driving unsafely
because he felt “sleepy.”
The IJ specifically found that the report was “extremely
probative” and its admission “fundamentally fair.” The BIA
“agree[d] . . . that the admission of the [Georgia police
report] was fundamentally fair and reliable” and found that
the “report reflect[ed] that the circumstances that resulted in
[Bogle’s] Georgia conviction involved his being in
possession of approximately three pounds of marijuana.”
Indeed, Bogle confirmed in his 2017 testimony that he
believed the police report stated the total amount of
marijuana as “two pounds and nine ounce[s].”
Despite that knowledge, Bogle never objected to the
amount recorded by the police report. He argues only that
his conditional discharge “could have rested on facts that do
not relate to no more than 30 grams of marijuana, [so] the
Court cannot conclusively connect the [conditional
discharge] to what is a controlled substance conviction under
INA § 237(a)(2)(B)(i).” The BIA rejected that theory,
dismissing Bogle’s appeal of the IJ’s decision.
II. DISCUSSION
“Whether a particular conviction constitutes a removable
offense is a question of law that we review de novo.”
Alvarado v. Holder, 759 F.3d 1121, 1126 (9th Cir. 2014).
Bogle gives three reasons that his conviction did not so
qualify. First, he argues that the conditional discharge for
the Georgia offense was not a “conviction” for purposes of
the Immigration and Nationality Act (INA). Second, he
argues that the categorical or modified categorical approach
applies to the thirty-gram limit of § 1227(a)(2)(B)(i)’s
personal-use exception, and that his offense did not
categorically involve more than thirty grams of marijuana.
14 BOGLE V. GARLAND
Third, he argues that even if the circumstance-specific
approach applies, the circumstances here do not clearly
establish that he was in possession of more than thirty grams
of marijuana. He also argues that the IJ erred in finding him
statutorily ineligible for cancellation of removal, and that it
was an abuse of discretion for the IJ to deny his application
even if he were eligible. We address each argument in turn.
A. Bogle’s conditional discharge was a conviction
under the INA.
Bogle argues that his conditional discharge was not a
conviction as defined by the INA. He points to the lack of
explicit evidence (like a plea agreement or plea colloquy)
that he pleaded guilty to or was found guilty of marijuana
possession. He also points to the rehabilitative purpose of
conditional discharges under the Georgia statute. These
arguments are unavailing.
The INA defines “conviction” as either “a formal
judgment of guilt . . . or, if adjudication of guilt has been
withheld, where”—
(i) a judge or jury has found the alien guilty
or the alien has entered a plea of guilty or
nolo contendere or has admitted
sufficient facts to warrant a finding of
guilt, and
(ii) the judge has ordered some form of
punishment, penalty, or restraint on the
alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A). Bogle’s conditional discharge
for his Georgia offense was not a formal judgment of guilt,
Ga. Code § 16-13-2(a), so to qualify as a conviction, the
BOGLE V. GARLAND 15
conditional discharge must satisfy the two INA requirements
for situations in which an adjudication of guilt has been
withheld.
We hold that it does. First, Bogle’s conditional
discharge explicitly required him to plead guilty to or be
found guilty of possessing marijuana. Id. Thus, we know
that Bogle’s conditional discharge satisfies the first INA
requirement. Second, the terms of Bogle’s conditional
discharge imposed four years of probation, “the first 16 days
to be served in confinement.” The Georgia court both
punished Bogle and restrained his liberty, satisfying the
second INA requirement.
The rehabilitative nature of the conditional discharge
statute does not change our conclusion that Bogle was
convicted for purposes of the INA. Although the statute
declares that “[d]ischarge and dismissal . . . shall not be
deemed a conviction,” id., a state “cannot dictate how the
term ‘conviction’ is to be construed under federal law.”
Reyes v. Lynch, 834 F.3d 1104, 1107 (9th Cir. 2016)
(quotation marks and citation omitted). “Immigration law
provides that, although the slate may be clean for various
state purposes, that is not necessarily so for purposes of
removal of an illegal alien, such as [Bogle].” Id. at 1106.
Because the conditional discharge statute required Bogle to
plead guilty to or be found guilty of possessing marijuana,
and because it imposed a punishment for that guilt, “the
federal definition of conviction is satisfied regardless of the
rehabilitative purpose” of the conditional discharge statute.
Id. at 1108.
16 BOGLE V. GARLAND
B. The circumstance-specific approach applies to the
thirty-gram limit of the personal-use exception.
Bogle contends that the categorical or modified
categorical approach, rather than the circumstance-specific
approach, applies to the thirty-gram limit of the personal-use
exception. We first note that his position has been rejected
by the BIA and the other circuits to have addressed this issue.
See Matter of Dominguez-Rodriguez, 26 I. & N. Dec. 408,
410–14 (BIA 2014); Matter of Davey, 26 I. & N. Dec. 37, 39
(BIA 2012); Cardoso de Flores v. Whitaker, 915 F.3d 379,
382–85 (5th Cir. 2019) (per curiam); Mellouli v. Holder,
719 F.3d 995, 1001 (8th Cir. 2013), rev’d on other grounds,
135 S. Ct. 1980 (2015). Here we defer to the BIA’s sound
interpretation that the personal-use exception calls for an
inquiry into the specific circumstances surrounding the
offense and decline to create a conflict with our sister
circuits.
Courts “generally employ a ‘categorical approach’ to
determine whether [a] state offense is comparable to an
offense listed in the INA,” Moncrieffe v. Holder, 569 U.S.
184, 190 (2013) (emphasis added), and “[i]n the main,
§ 1227(a)(2)(B)(i) . . . has no . . . circumstance-specific
thrust,” Mellouli v. Lynch, 135 S. Ct. 1980, 1986 n.3 (2015)
(emphasis added). However, the Supreme Court has never
held that the categorical approach must be applied to the
personal-use exception of § 1227(a)(2)(B)(i), and we have
never held that the categorical approach applies to the
exception in its entirety. Although we applied the modified
categorical approach in Medina v. Ashcroft, 393 F.3d 1063(9th Cir. 2005), in determining that a conviction for
attempting to be under the influence of a controlled
substance (THC-carboxylic acid) was a match for the
possession for one’s own use of marijuana (the type of
BOGLE V. GARLAND 17
offense covered by the personal-use exception), id. at 1065–
66, 3 we did not address the exception’s thirty-gram limit
except to note that “[n]othing in the statutory definition of
[the] crime or in the specified documents negates the
possibility (indeed the likelihood) that Medina’s conviction
resulted from the personal use of marijuana in an amount less
than 30 grams,” id. at 1066. And in Medina, unlike here, it
was undisputed that the petitioner had used or possessed
fewer than thirty grams of marijuana. Id. at 1066 n.9.
We afford Chevron deference to published decisions of
the BIA that interpret the INA. Diaz-Quirazco v. Barr,
931 F.3d 830, 838 (9th Cir. 2019). If Congress has not
spoken to the particular issue or the statute is ambiguous, and
if the BIA’s interpretation is reasonable, we will accept that
interpretation, even if it differs from what we believe to be
the best interpretation. Perez-Guzman v. Lynch, 835 F.3d
1066, 1073 (9th Cir. 2016).
The BIA held in Matter of Davey that the circumstance-
specific approach applies to the personal-use exception.
26 I. & N. Dec. at 39; see also Matter of Dominguez-
Rodriguez, 26 I. & N. Dec. at 410–14 (applying Matter of
Davey in the removal context). Section 1227(a)(2)(B)(i)
does not unambiguously direct us to use either the
categorical approach or the circumstance-specific approach
in determining whether Bogle’s offense involved thirty
grams or less of marijuana. Therefore, we will defer to
3
Our decision in Medina applying the modified categorical
approach instead of the circumstance-specific approach appears to
conflict with the Supreme Court’s later decision in Nijhawan v. Holder,
557 U.S. 29 (2009). See infra p. 18–19. We leave that issue for another
day, as our case relates only to the thirty-gram limit, and not how to
determine whether the offense of conviction was an offense involving
possession for one’s own use.
18 BOGLE V. GARLAND
Matter of Davey and apply the circumstance-specific
approach, so long as doing so is reasonable.
The Supreme Court’s decision in Nijhawan v. Holder,
557 U.S. 29 (2009), discusses the conditions that call for a
circumstance-specific inquiry. As the name suggests, the
circumstance-specific approach applies when the statute
“refers to the specific circumstances in which a crime was
committed,” rather than “generic crimes.” Id. at 38. One
indication that a statute refers to specific circumstances
rather than generic crimes is statutory language focusing on
“the conduct involved in” rather than “the elements of” an
offense. Id. at 39 (quotation marks omitted). Another
indication is a scarcity of state and federal offenses
categorically matching the INA provision at issue, or an
imbalance where only some states’ offenses are a categorical
match, so that applying the categorical approach would leave
the provision with little, if any, meaningful application or
would cause the provision to apply in a limited and
haphazard manner. Id. at 39–40.
The statutory language of the personal-use exception
explicitly focuses on the conduct involved in an offense, not
its elements. The exception applies to a “single offense
involving possession for one’s own use of 30 grams or less
of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis
added). While Bogle points to no state or federal marijuana
offense with a threshold of thirty grams, the government
identifies two, see Miss. Code Ann. § 41-29-139(c)(2);
35 Pa. Cons. Stat. § 780-113(a)(31), and our research has
revealed no others, meaning that applying the categorical
approach to the thirty-gram limit would render the personal-
BOGLE V. GARLAND 19
use exception meaningless or, at best, haphazard in
application. 4
Therefore, the BIA’s decision in Matter of Davey is
consistent with the Supreme Court’s analysis in Nijhawan
and accordingly, is reasonable. See Cardoso de Flores,
915 F.3d at 382–83 (“[W]e conclude that the BIA’s position
that the personal-use exception requires a circumstance-
specific inquiry is a reasonable interpretation of the INA; we
therefore defer to the BIA. The Supreme Court’s analysis in
[Nijhawan] all but compels this result.” (citation omitted)).
Indeed, it is hard to see how a court could ever determine
whether an “offense involv[ed] possession for one’s own use
of 30 grams or less of marijuana” without looking at the
specific circumstances of the particular offense. We will
defer to the BIA as to the thirty-gram limit of the personal-
use exception and evaluate whether the circumstances
specific to this case are sufficient to meet the government’s
burden of proving by clear and convincing evidence that
Bogle possessed more than thirty grams of marijuana.
C. The circumstances specific to this case clearly
establish that Bogle knowingly possessed more than
thirty grams of marijuana.
Bogle argues that because his conviction was for the
possession of more than one ounce (28.35 grams) of
4
The same would have been true when the personal-use exception
was first added to the INA in 1990, as noted by the Fifth Circuit in
Cardoso de Flores. In 1990, “the federal simple-possession statute” did
not “distinguish between possession of greater or less than 30 grams,”
and although a “majority of states and the District of Columbia” did
“carve[] out a lower offense for simple possession” of a small amount of
marijuana, the threshold was twenty-nine grams, not thirty. Cardoso de
Flores, 915 F.3d at 384.
20 BOGLE V. GARLAND
marijuana, he could have possessed between 28.36 and thirty
grams—qualifying him for the personal-use exception. He
insists that the police report cannot on its own establish that
he knowingly possessed more than thirty grams, even under
the circumstance-specific approach. Such an argument both
misreads the record and misunderstands the circumstance-
specific approach. The police report is not the only part of
the record establishing that Bogle knowingly possessed
more than thirty grams of marijuana.
Applying the circumstance-specific approach requires us
to consider “the particular circumstances in which an
offender committed the crime on a particular occasion.”
Nijhawan, 557 U.S. at 38. This differs from the categorical
approach with its “focus on the formal elements of generic
offenses,” Matter of Davey, 26 I. & N. Dec. at 39, and the
modified categorical approach, under which the court can
consider only certain documents, typically not including a
police report, Almazan-Becerra, 537 F.3d at 1097.
Although the dissent concurs in our holding that the
circumstance-specific approach applies to the thirty-gram
limit of the personal use exception, Dissent at 32, the
dissent’s application of the circumstance-specific approach
confuses the requirements of the circumstance-specific
approach with the requirements of the categorical and
modified categorical approaches. 5 Most notably, the dissent
5
For example, the dissent relies on the Supreme Court’s recent
decision in Pereida v. Wilkinson, 141 S. Ct. 754 (2021), for the
proposition that “the threshold factual question is which acts formed the
basis of the alien’s prior conviction. . . . Accordingly, the government
may only deem Bogle removable after it has proven that the conviction
itself, i.e.[,] Bogle’s plea, involved 30 grams of marijuana or more.”
Dissent at 34–35 (quotation marks, citation, and alterations omitted).
But in Pereida, the Court was applying the categorical approach, which
BOGLE V. GARLAND 21
criticizes that “[n]othing in our record indicates that Bogle
admitted or stipulated that a specific quantity of marijuana
formed the basis of his only qualifying prior conviction, that
evidence was presented to the Georgia court concerning the
“implicates two inquiries—one factual (what was [the petitioner’s] crime
of conviction?), the other hypothetical (could someone commit that
crime of conviction without [satisfying the INA’s offense
requirement]?).” Pereida, 141 S. Ct. at 762. The Court had determined
that only certain offenses covered by a divisible statute of conviction
were categorical matches for the INA offense requirement at issue (crime
involving moral turpitude), so the factual determination of which offense
the petitioner stood convicted of was especially important. See id. at
762–63. Here, in contrast, we know Bogle’s crime of conviction—
possession of more than one ounce of marijuana. Thus, having answered
the “threshold question,” we can move on to the second inquiry, which
under the circumstance-specific approach, is not whether the “conviction
itself, i.e.[,] Bogle’s plea, involved 30 grams of marijuana or more”—it
involved only an ounce or more—but whether the circumstances specific
to this case show that Bogle possessed thirty grams of marijuana or more.
Compare id. at 762, with Nijhawan, 557 U.S. at 32.
The dissent also relies on Moncrieffe v. Holder, 569 U.S. 184(2013), for the proposition that “[i]n evaluating Bogle’s conviction,
precedent dictates that we must presume that the conviction rested upon
nothing more than the least of the acts criminalized.” Dissent at 35
(emphasis added) (quotation marks, citation, and alteration omitted).
Yet again, the dissent confuses the circumstance-specific approach with
the categorical approach. The Court in Moncrieffe was applying the
categorical approach and thus appropriately stated in full: “Because we
examine what the state conviction necessarily involved, not the facts
underlying the case, we must presume that the conviction rested upon
nothing more than the least of the acts criminalized, and then determine
whether even those acts are encompassed by the generic federal offense.”
569 U.S. at 190–91 (emphasis added) (quotation marks, citation, and
alteration omitted). Of course, this principle does not apply to the
circumstance-specific approach, which is distinct from the categorical
approach precisely because it requires us to examine not only the state
conviction, but also the facts underlying the case. See Nijhawan,
557 U.S. at 41–42.
22 BOGLE V. GARLAND
quantity of marijuana, or that the Georgia court made any
finding as to a quantity of marijuana greater than an ounce.”
Dissent at 33. Even assuming that to be true, 6 Nijhawan
expressly did not import into the circumstance-specific
approach the modified categorical approach’s requirement
that a “jury verdict, or a judge-approved equivalent, embody
a determination” of the fact at issue. 557 U.S. at 41. Unlike
the categorical or modified categorical approaches, the
circumstance-specific approach by its very nature “permit[s
a petitioner] to be deported on the basis of circumstances that
were not before judicially determined to have been present
and which he may not have had an opportunity, prior to
conviction, to dispute.” 7 Id. (emphasis omitted).
6
As explained in detail in the fact section, Bogle never challenged
the quantity of marijuana actually recovered, and in several parts of his
testimony, he essentially admitted to it.
7
We did not hold otherwise in Fuentes v. Lynch, 788 F.3d 1177 (9th
Cir. 2015) (per curiam). In Fuentes, the BIA had relied on (1) the
petitioner’s indictment and judgment and (2) the petitioner’s presentence
report (PSR) to conclude that the petitioner had conspired to launder
more than $10,000, making him an aggravated felon. Id. at 1182–83.
We held that it was an error for the BIA to rely on the indictment and
judgment because the petitioner did not actually plead guilty to
conspiring to launder more than $10,000, but that the error was harmless
because the PSR independently established the monetary threshold by
clear and convincing evidence. Id. Thus, Fuentes stands for the simple
proposition that where, as here, a petitioner’s judgment of conviction
does not itself establish the fact at issue, courts may look to other
documents to determine the circumstances particular to the petitioner’s
offense. And although the PSR in Fuentes stated that the petitioner had
stipulated to the amount of laundered funds recorded therein, id. at 1183,
a stipulation is not necessary for a document to satisfy the government’s
burden of clear and convincing evidence, see, e.g., Cardoso de Flores,
915 F.3d at 386.
BOGLE V. GARLAND 23
Of course, this does not mean that a petitioner does not
have due process protections under the circumstance-
specific approach. First, the Supreme Court still instructs
that the circumstance-specific approach requires
“fundamentally fair procedures, including procedures that
give an alien a fair opportunity to dispute a Government
claim.” Id. Here, the BIA’s reliance on the police report
along with other evidence and testimony was not
fundamentally unfair. Cf. Matter of Grijalva, 19 I. & N.
Dec. at 722 (explaining that usage of a police report is
fundamentally unfair if, for example, the petitioner “made
statements involuntarily to the officers who arrested him, or
[if] the police officers acted egregiously in seizing
evidence”). Bogle had a fair opportunity (actually several
such opportunities) to dispute the quantity of marijuana
found in the car he was driving, but he chose not to do so.
See Nijhawan, 557 U.S. at 41; Arias-Minaya v. Holder,
779 F.3d 49, 54 (1st Cir. 2015) (“As long as the nature and
stage of the proceedings are taken into account . . . the case
law does not categorically preclude the agency from
considering a police report simply because the arrest detailed
therein has not resulted in a conviction.”).
Second, even under the circumstance-specific approach,
the government still must prove to the IJ and BIA that the
quantity of marijuana exceeded thirty grams by clear and
convincing evidence. 8 Although this is an “exacting
8
The dissent states that “[t]o affirm the BIA on this record would
allow immigration authorities to . . . disregard Bogle’s presumption of
innocence as to any conduct beyond the scope of his plea.” Dissent at 46.
However, Nijhawan reminds us that “a deportation proceeding is a civil
proceeding in which the Government does not have to prove its claim
‘beyond a reasonable doubt,’” but by clear and convincing evidence.
557 U.S. at 42. Therefore, under the circumstance-specific approach, the
government may deport aliens “on the basis of circumstances that were
24 BOGLE V. GARLAND
standard,” Dissent at 33, the circumstances specific to this
case can easily satisfy the burden. At the very least, we do
not “find that any rational trier of fact would be compelled
to conclude that the proof did not rise to the level of clear
and convincing evidence,” thus requiring reversal under our
review for substantial evidence. Barikyan v. Barr, 917 F.3d
142, 146 (2d Cir. 2019) (emphasis added) (citation omitted);
see Nakamoto v. Ashcroft, 363 F.3d 874, 881–82 (9th Cir.
2004) (same). 9
As a starting point, we agree with the IJ and the BIA that
the police report here is “probative” and “reliable.” Even if
unpublished decisions by other circuits were binding on this
court, the unpublished Tenth Circuit decision cited by the
dissent states that “certain features of the police report
itself—such as its level of detail, internal consistency, and
quality” are relevant to “the probable accuracy of the
relevant information contained therein.” United States v.
Padilla, 793 F. App’x 749, 757 (10th Cir. 2019). The police
report here is detailed, is internally consistent, and records
observations of fact rather than the officers’ conclusions. It
states that the “green leafy material” found in the three bags
“tested positive for marijuana,” and provides the precise
weight of each bag: 446.6 grams, 450.5 grams, and 438.8
grams. Given that Bogle did not specifically contest the
measurements of quantity in the report, holding such a report
not before judicially determined to have been present” beyond a
reasonable doubt without undermining a petitioner’s presumption of
innocence. Id. at 41–42 (emphasis omitted).
9
We are not reviewing for clear and convincing evidence but are
rather reviewing whether substantial evidence supports the BIA’s factual
determination that the government has proven the quantity of marijuana
by clear and convincing evidence—an important distinction. See
Nakamoto, 363 F.3d at 881–82.
BOGLE V. GARLAND 25
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.
We will not adopt such a categorical rule, 10 as holding
that no police report could ever be sufficient, standing alone,
10
The dissent joins us “in rejecting a categorical rule that a police
report can never be sufficient to meet the government’s burden in
removal proceedings.” Dissent at 37. But the dissent insists that this
police report is not enough because it “contains no information
indicating that Bogle was aware there was marijuana in the compartment
in the trunk before it was discovered by officers.” Dissent at 39. That is
incorrect. First, as described above, the police report offers direct
evidence of Bogle’s knowledge by describing his outright confession
“that he knew that drugs [were] in the car and only did it to make some
extra money.” It would, of course, be unlikely that Bogle would be
“mak[ing] some extra money” by transporting the dissent’s hypothetical
twenty-nine grams of marijuana as opposed to the actual 1335 grams
recovered from the car Bogle was driving. Second, the report offers
circumstantial evidence of Bogle’s knowledge, including that there was
a “very strong odor of marijuana coming from inside of the car,” that
Bogle was driving a rental car in another person’s name “for a friend,”
and that he was “extremely nervous and breathing heavy . . . [with] his
carotid artery pulsating on the right side of his neck.” Although Bogle
could have been “extremely nervous” for reasons other than his
knowledge that the car contained three pounds of marijuana (as opposed
to twenty-nine grams), the police report’s description of his nervous
reaction is hardly “no information” indicating Bogle’s awareness of the
marijuana. Dissent at 39.
The dissent also complains that the report is uncorroborated and thus
incomplete—for instance, because it is not accompanied by photos of the
marijuana (which photos, of course, would not even address the dissent’s
chief concern about the lack of proof of Bogle’s knowledge). Dissent
at 39–40. But the conclusion that a police report is insufficient because
it is uncorroborated is synonymous with saying that a police report is
insufficient evidence because it is the only evidence—the categorical
rule that we and the dissent both reject. This police report is detailed and
26 BOGLE V. GARLAND
would be directly contrary to the Supreme Court’s
instruction to consider the particulars of each case (though
we continue to emphasize that the police report did not stand
alone here). Adopting such a rule would also impose a
higher evidentiary standard for removals under
§ 1227(a)(2)(B)(i) than for certain criminal convictions,
which must be proven beyond a reasonable doubt. In United
States v. Irion, 482 F.2d 1240 (9th Cir. 1973), cert. denied,
414 U.S. 1026, we held that a “police report, the only
evidence at the trial,” was sufficient to uphold defendants’
convictions for importation and possession of marijuana
with intent to distribute. Id. at 1245 (emphasis added)
(quotation marks and footnote omitted). “[I]n view of [the
police report’s] unchallenged and uncontradicted testimony
that the substance was in fact marihuana” and because “there
was no suggestion of any question regarding the nature of
the substance” until the “issue was first raised on appeal,”
the defendants’ “untimely challenge . . . to the sufficiency of
the evidence” necessarily failed. Id. (emphasis added).
The same logic should apply to Bogle, who, as noted, has
never disputed the police report’s record of the quantity of
marijuana found in his car, even on appeal. In fact, Bogle’s
failure to challenge that aspect of the police report is just one
of the many circumstances we consider in addition to the
police report itself.
In looking at whether proceedings were fundamentally
fair for purposes of the circumstance-specific approach,
courts may consider whether a petitioner had “ample
opportunity to challenge” the evidence against him but did
explicit, and records observations of fact rather than mere conclusions.
Thus, the dissent’s conclusion that this police report is insufficient is
tantamount to saying that no police report can ever be sufficient.
BOGLE V. GARLAND 27
not. Fan Wang v. Att’y Gen., 898 F.3d 341, 350 (3d Cir.
2018); see also United States v. Gonzalez-Medina, 757 F.3d
425, 432 (5th Cir. 2014); Hamilton v. Holder, 584 F.3d 1284,
1287 (10th Cir. 2009). We thus consider Bogle’s failure to
ever challenge the amount of marijuana recorded in the
police report, despite his adamant protests that he did not
know there was marijuana in the vehicle.
Courts may also consider whether there was an “absence
of any conflicting evidence.” Nijhawan, 557 U.S. at 43; see
also Kaplun v. Att’y Gen., 602 F.3d 260, 266 (3d Cir. 2010).
We thus consider Bogle’s 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.
Courts may also consider whether the petitioner admitted
the evidence against him. See Bianco v. Holder, 624 F.3d
265, 273 (5th Cir. 2010). We thus consider Bogle’s
testimony in 2017 that just one of the bags recovered by the
police contained “[n]othing more than say 40, 40 grams,” as
well as the following admission from his testimony in 2019:
“I admit there was marijuana in the car, and I admit to it but
did I knowingly get in the car and drove it knowing that
marijuana was there, no, I did not. I just did not, Your
Honor.”
Finally, courts may consider whether the reported
amount exceeded the statutory cutoff by a large or small
degree. See Barikyan, 917 F.3d at 147. We thus consider
the fact that the police report stated there were more than
1300 grams of marijuana in Bogle’s car—1270 grams above
the personal-use exception’s limit.
Viewing those circumstances together, the evidence
here, including the police report, clearly establishes that
28 BOGLE V. GARLAND
Bogle possessed more than thirty grams of marijuana. Only
in an Alice in Wonderland world 11 could we overturn the IJ
and BIA determinations, on the ground that the police report
alone is not clear and convincing evidence, all the while
ignoring the other evidence and specific circumstances in the
record—including that Bogle never challenged the quantity
of marijuana actually recovered, and indeed, essentially
admitted to it.
Nonetheless, the dissent urges us to adopt that
counterintuitive result under the hypothetical scenario that
Bogle actually did have a strong case that he did not know
about the marijuana in the trunk. 12 Thus, the dissent argues,
“[o]ne plausible reading of the record is that the prosecutor
recognized that Bogle had a potentially valid defense to any
charge related to the marijuana in the trunk, and exercised
prosecutorial discretion to obtain a plea to something less
than that reliant on the quantity of marijuana found in the
compartment in the trunk”—possession, rather than
possession with intent to distribute. Dissent at 43, 44. After
all, the dissent notes, “Bogle admits and the police report
itself suggests that there was some marijuana in the cabin.
11
See United States v. Battle, 927 F.3d 160, 163 n.2 (4th Cir. 2019)
(describing the categorical approach as an “Alice in Wonderland path”
because under that “absurd” approach, we “must look not to what
[petitioner] actually did” but instead, “must turn away from the facts of
this case and consider . . . situations that have nothing to do with
[petitioner]”). Unlike the Alice in Wonderland path of the categorical
approach, we are supposed to look to what Bogle actually did under the
circumstance-specific approach.
12
Making him the victim of not one but two run-ins with law
enforcement in which he was transporting somebody else’s marijuana.
See supra n.1.
BOGLE V. GARLAND 29
The officer noted leafy flakes on the console, and the odor
of marijuana.” Dissent at 43 n.8.
It is unclear where in the record the dissent finds this
compelling story of the innocent drug user who knowingly
possessed between 28.36 and thirty grams in the passenger
compartment of the vehicle he was driving, all the while
blissfully ignorant of the 47.12 ounces of marijuana in the
vehicle’s trunk. And certainly, Bogle has never suggested
that this hypothetical came to pass in his case. See Barikyan,
917 F.3d at 146 (requiring petitioner to “offer[] . . . evidence
that [proposed] hypotheticals came to pass in his case” even
where the government had the burden of proof by clear and
convincing evidence). Therefore, although the record
supports that there were flakes of marijuana in the passenger
compartment, we will not invent 28.36 grams of flakes (but
no more than thirty) to allow Bogle to avoid the immigration
consequences of his Georgia conviction. 13 Where, as here,
“the record before us contains no plea agreement, and
certainly not one which explicitly spells out the [quantity of
marijuana] to which [Bogle] pleaded guilty,” we will not
assume that Bogle pleaded guilty to possessing some lower
quantity of marijuana as “part of an explicit bargain between
[him] and the Government” merely because “the
Government could have charged [him] with a [more severe]
crime[] but did not.” Ku v. Att’y Gen., 912 F.3d 133, 142
(3d Cir. 2019) (emphasis added). “[P]ure conjecture” cannot
sever the tie between Bogle’s conviction and the quantity of
marijuana recorded in the police report, “[a]bsent a clear and
13
According to at least one study, there are approximately
89 average joints in one ounce of marijuana. How Much Weed Is in a
Joint? Pot Experts Have a New Estimate, N.Y. Times (July 14, 2016),
https://www.nytimes.com/2016/07/15/science/how-much-weed-is-in-a-
joint-pot-experts-have-a-new-estimate.html.
30 BOGLE V. GARLAND
unmistakable indication of [the government’s stipulation to
some lesser quantity] in a written plea agreement.” 14 Id.; see
14
The dissent’s attempts to distinguish Ku are unavailing. First, the
dissent highlights that in Ku, there was a judgment of conviction that
included a total loss determination well in excess of the relevant $10,000
threshold, as well as a restitution order in that amount. Dissent at 48.
Again, the dissent confuses the modified categorical approach with the
circumstance-specific approach, which does not require a “jury verdict,
or a judge-approved equivalent, [to] embody a determination” of the fact
at issue, and which “permit[s a petitioner] to be deported on the basis of
circumstances that were not before judicially determined to have been
present.” Nijhawan, 557 U.S. at 41 (emphasis omitted).
Second, the dissent suggests that Bogle’s invented plea agreement—
in which Bogle was convicted of 28.36 grams but not more than thirty—
is not “pure conjecture” because it is “supported both by [Bogle’s]
assertion of a potentially valid affirmative defense, and the fact that the
prosecutor ultimately reconsidered, and dropped, the original higher
charge.” Dissent at 48–49. That is wrong too. Ku held that “absent a
clear and unmistakable indication of [the amount at issue] in a written
plea agreement,” or any other evidence indicating that a petitioner
pleaded to a lesser amount than the amount clearly established by the
government’s evidence, a court should not assume that a petitioner
pleaded guilty to some lesser amount based only “on the fact that the
Government could have charged [the petitioner] with [additional] crimes
but did not.” 912 F.3d at 142 (contrasting Alaka v. Att’y Gen., 456 F.3d
88 (3d Cir.), as amended (Aug. 23, 2006), and overruled by Bastardo-
Vale v. Att’y Gen., 934 F.3d 255 (3d Cir. 2019) (en banc), on the grounds
that, in Alaka, the precise amount at issue was specified in a plea
agreement). Here, Bogle’s “assertion of a potentially valid . . . defense”
is not a “clear and unmistakable indication” that he pleaded guilty to
possessing something less than thirty grams of marijuana, nor was his
current supposed view of the facts incorporated into a written plea
agreement. Therefore, because neither he nor the dissent points to any
other evidence indicating that he pleaded guilty to a lesser amount of
marijuana than the amount clearly established by the government’s
evidence, we cannot assume that Bogle pleaded guilty to less than thirty
grams of marijuana based only on “the fact that the Government could
have charged”—and initially did charge—additional crimes but
ultimately did not. Id.BOGLE V. GARLAND 31
Nijhawan, 557 U.S. at 42 (“[A]mount must be tethered to
offense of conviction; amount cannot be based on acquitted
or dismissed counts or general conduct[.]” (citation
omitted)).
To hold otherwise would be both legally erroneous and
practically unjust. It would come at the expense of the
immigration system’s search for truth. See Iliev v. INS,
127 F.3d 638, 643 (7th Cir. 1997) (“The Immigration Judge
has broad discretion . . . in order to ascertain the truth.”); see
also Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998)
(same). In so doing, it would bring us back to the long-
disfavored “sporting theory” of justice, see Brady v.
Maryland, 373 U.S. 83, 90–91 (1963), which causes even
“the most conscientious judge to feel that he is merely to
decide the contest . . . according to the rules of the game, not
to search independently for truth and justice,” Roscoe
Pound, The Causes of Popular Dissatisfaction with the
Administration of Justice, 29 Ann. Rep. Am. Bar Ass’n 395,
405 (1906). And it would come “at the potential cost of
substantial expenditures of agency time,” Communist Party
of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 31
(1961), and at a cost to the rule of law itself, see Pound,
supra, at 406 (“If the law is a mere game, neither the players
who take part in it nor the public who witness it can be
expected to yield to its spirit when their interests are served
by evading it.”).
We will not condone such a result. Today’s appeal is not
a game, and we search for the truth. Here that means
carefully evaluating the circumstances specific to Bogle’s
case, and that evaluation leads to only one conclusion:
Bogle’s conviction involved more than thirty grams of
marijuana.
32 BOGLE V. GARLAND
Accordingly, we will not grant review of Bogle’s order
of removal for committing a controlled substance offense.
Nor will we grant review of the IJ’s denial of Bogle’s
application for cancellation of removal. Barring a colorable
constitutional claim 15 or question of law, 16 8 U.S.C.
§ 1252(a)(2)(D), we lack jurisdiction to review such a
discretionary decision, id. § 1252(a)(2)(B)(i). The
temporary stay of removal remains in place until issuance of
the mandate. The motion for a stay of removal is otherwise
denied.
PETITION DENIED.
PEARSON, District Judge, dissenting:
I join my colleagues in concluding that Bogle’s
conditional discharge was a conviction under the INA, that
the circumstance-specific approach applies to the thirty-
gram limit of the personal use exception, and in rejecting a
15
Bogle seems to make a procedural due process argument based on
the IJ’s reliance on the police reports from both Arizona and Georgia,
but the claim is not colorable. “An alien’s right to procedural due process
is violated only if [1] the proceeding was so fundamentally unfair that
the alien was prevented from reasonably presenting his case, and [2] the
alien proves that the alleged violation prejudiced his or her interests.”
Mendez-Garcia v. Lynch, 840 F.3d 655, 665 (9th Cir. 2016) (quotation
marks and citation omitted). As already explained, it was not
fundamentally unfair for the IJ to consider the police report.
16
Bogle contends that the IJ erred by applying the stop-time rule to
his case, but the claim is not colorable. Bogle’s argument relies only on
our holding in Nguyen v. Sessions, 901 F.3d 1093 (9th Cir. 2018), which
was abrogated by the Supreme Court’s subsequent holding in Barton v.
Barr, 140 S. Ct. 1442 (2020).
BOGLE V. GARLAND 33
categorical rule that a police report can never be sufficient to
meet the government’s burden of clear and convincing
evidence. Our agreement ends there. I do not agree that the
police report in this case satisfies the government’s burden
of clear and convincing evidence.
The circumstance-specific approach permits courts to
probe the factual underpinnings of a prior qualifying
conviction. It does not relieve the government of its
evidentiary burden when an alien admits to earlier,
unrelated, criminal conduct, nor does it permit removal
based on intuition and guesswork. Nothing in our record
indicates that Bogle admitted or stipulated that a specific
quantity of marijuana formed the basis of his only qualifying
prior conviction, that evidence was presented to the Georgia
court concerning the quantity of marijuana, or that the
Georgia court made any finding as to a quantity of marijuana
greater than an ounce. The majority’s decision regarding the
government’s satisfaction of its evidentiary burden is belied
by the record and contrary to established precedent.
Therefore, I respectfully dissent.
I. The Government’s Burden
To prove that Bogle’s conviction was one for possessing
more than 30 grams of marijuana, the government must
present clear and convincing evidence. That is an exacting
standard. 8 U.S.C. § 1229a(c)(3)(A); Cortez-Acosta v. INS,
234 F.3d 476, 480–81 (9th Cir. 2000) (“very demanding”);
see also Matter of Davey, 26 I. & N. Dec. at 41 (“[A]n
inconclusive record is not sufficient.”). Even if the evidence
suggests that Bogle probably possessed more than 30 grams,
“‘probably’ is a lower standard than ‘clear, unequivocal, and
convincing.’” Cortez-Acosta, 234 F.3d at 482 (citations
omitted). “[W]e affirm only if ‘the [agency] has successfully
carried this heavy burden of clear, unequivocal, and
34 BOGLE V. GARLAND
convincing evidence.’” Hernandez-Guadarrama v.
Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005) (citations
omitted, emphasis added) (alteration in original).
The Supreme Court recently reminded us that “like any
other fact, the party who bears the burden of proving [the
crime of conviction in immigration proceedings] bears the
risks associated with failing to do so.” Pereida v. Wilkinson,
141 S. Ct. 754, 765 (2021). Because courts resolve factual
disputes regarding the crime of conviction “only by
reference to evidence, . . . [the] statutory allocation of the
burden of proof will sometimes matter a great deal.” Id. at
764. 1
The question on which the government bears the burden
of clear and convincing evidence is not, as the majority
implies, how much marijuana was in the rental car. Rather,
“the threshold factual question [is] which [acts] formed the
basis of the alien’s prior conviction.” Pereida, 141 S. Ct. at
1
Here, the government bears a higher burden than the alien in
Pereida — clear and convincing rather than a mere preponderance.
Pereida addressed an alien’s burden to demonstrate eligibility for
cancellation of a concededly proper order of removal, subject to a
preponderance of the evidence standard. 8 U.S.C. § 1229a(c)(4)(A)
(“An alien applying for relief or protection from removal has the burden
of proof[.]”); §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I) (A noncitizen is
ineligible for this discretionary relief, however, if, among other things,
he has “been convicted of ” a “crime involving moral turpitude.”); 8
C.F.R. § 1240.8(d) (If the evidence suggests that a ground “for
mandatory denial of the application for relief may apply, the alien shall
have the burden of proving by a preponderance of the evidence that such
grounds do not apply.”). Unlike Pereida, Bogle challenges whether the
government has proven he is removable.
BOGLE V. GARLAND 35
765 (some emphasis added). 2 The drug quantity at issue
“must be tied to the specific counts covered by the
conviction.” Nijhawan, 557 U.S. at 42 (citations and
quotation marks omitted). In determining a quantity to be
proven under the circumstance-specific approach, the
“amount must be tethered to offense of conviction[,]” and
“cannot be based on acquitted or dismissed counts or general
conduct[.]” Id. (quoting Alaka v. Att’y Gen. of the United
States, 456 F.3d 88, 107 (3rd Cir. 2006), overruled on other
grounds by Bastardo-Vale v. Att’y Gen. United States of
America, 934 F.3d 255 (3rd Cir. 2019)).
Accordingly, the government may only deem Bogle
removable after it has proven that the conviction itself, i.e.
Bogle’s plea, involved 30 grams of marijuana or more.
In evaluating Bogle’s conviction, precedent dictates that
we “must presume that the conviction rested upon nothing
more than the least of the acts criminalized[.]” Moncrieffe
v. Holder, 569 U.S. 184, 190–91 (2013) (citation and
quotation marks omitted). 3 We are legally compelled to
2
See also Nijhawan v. Holder, 557 U.S. 29, 32 (2009) (“[I]n order
to determine whether a prior conviction is for the kind of offense
described, the immigration judge must look to the” circumstances in
which an offender committed the crime.) (emphasis added); Medina v.
Ashcroft, 393 F.3d 1063, 1065 n.5 (9th Cir. 2005) (“The government
bears the burden of establishing that the alien’s conviction does not fall
within the [personal-use exception].”) (emphasis added).
3
The majority opines that this is only true in cases applying the
categorical approach. Opinion at 20–22 n.5. While this concept
originated in cases applying the categorical approach, its application is
not as limited as the majority suggests. The categorial approach makes
such a presumption irrebuttable. The modified categorial and
circumstance-specific approaches provide frameworks under which the
party with the burden of proof can move the needle. Certainly, the
36 BOGLE V. GARLAND
faithfully follow precedent. In doing so, we must conclude
that Bogle is removable only if the government has met its
burden of proof. On the record before us, we begin that
analysis with the presumption that Bogle’s conviction is for
less than 30 grams. Id. “Since the Government must show
the [quantity] by clear and convincing evidence,
uncertainties caused by the passage of time are likely to
count in the alien’s favor.” Nijhawan, 557 U.S. at 42; see
Pereida, 141 S. Ct. at 765.
II. Relevant Facts
According to the police report, Bogle was arrested while
he was driving a rental car that he did not rent and was not
authorized to drive. Bogle told the officer he had been hired,
and given use of the car, to pick up a female companion of
one of his friends. The officer claims he smelled marijuana
inside the vehicle, and then conducted a search. The officer
states that he “saw several green leafy flakes lying on the
driver’s seat and console[,]” and proceeded to search the
trunk, where he found three gallon-sized Ziploc bags “in the
firewell of the vehicle located behind the inner carpet lining”
full of material that later tested positive for marijuana.
It is those three bags, alone, that make up the 2.94 pounds
of marijuana the government and majority contend form the
basis for Bogle’s qualifying conviction. The police report
does not indicate whether a more thorough search of the
car’s cabin was conducted or whether the “leafy flakes” in
the passenger compartment may have resulted from
majority does not dispute that proof of conviction, alone, is proof only
of the least of the acts criminalized. Opinion at 22 n.7. It, however, has
provided no authority permitting it to begin its analysis at some alternate
weight.
BOGLE V. GARLAND 37
consumption prior to the officer’s arrival. Although the
record contains some conflicting information on this point,
Bogle has contended throughout years of protracted
proceedings that he was unaware that there were three large
bags of marijuana in the trunk. Bogle did acknowledge that
there was a smaller bag of marijuana in the car, weighing no
more than 40 grams. This, however, is not documented in
the police report.
The majority opinion regarding the quantity involved
rests on two key features of the record: the police report, and
Bogle’s failure to challenge that there was about three
pounds of marijuana in the trunk of the car. Neither of these
factors, separately or taken together, supports the conclusion
that the government has proven Bogle’s conviction falls
outside the personal use exception.
III. The Police Report
I join my colleagues in rejecting a categorical rule that a
police report can never be sufficient to meet the
government’s burden in removal proceedings. 4
4
I disagree with the majority, however, that such a report could be
sufficient because, once, nearly 50 years ago, “we held that a ‘police
report, the only evidence at trial,’ was sufficient to uphold defendants’
convictions for importation and possession of marijuana with intent to
distribute.” Opinion at 25 (quoting United States v. Irion, 482 F.2d 1240,
1245 (9th Cir. 1973) (emphasis added by majority)). To begin with, the
quote is misleading. Irion was a bench trial, the police officers had
previously testified at a suppression hearing, and the transcript of that
hearing, as well as evidence submitted there, were discussed by the
parties and considered by the court, in addition to the police report. 482
F.2d at 1246 n.13. The majority uses its interpretation of Irion to argue
that a categorical rule would “impose a higher evidentiary standard for
removals . . . than for certain criminal convictions, which must be proven
38 BOGLE V. GARLAND
When evaluating police reports, a case-by-case analysis
is the appropriate approach. United States v. Padilla, 793 F.
App’x 749, 757 (10th Cir. 2019). An individualized analysis
allows the immigration judge, or a court, to independently
assess a report’s probative value, determine whether its
admission would be fundamentally fair, and decide what
weight to ascribe an admitted report.
[B]ecause police reports—as a category of
evidence—are not inherently reliable, it
follows that courts cannot resolve a disputed
[] fact simply by assuming that information
contained in a police report meets the due-
process “reliability floor.” [United States v.
Ruby, 706 F.3d 1221, 1229 (10th Cir. 2013).]
Instead, [] courts must make a case-by-case
reliability determination. In so doing, they
may examine the record, as a whole, to
discern whether there is additional evidence
to corroborate sufficiently the relevant
information that the police report is being
beyond a reasonable doubt.” Opinion at 25. Foremost, this argument
reveals a flaw in the majority’s logic — it is not that immigration
officials must demonstrate factual guilt by clear and convincing
evidence. Rather, they must prove the circumstances of a conviction by
that standard. See supra Section I. Furthermore, the majority fails to
note that the police report in Irion was found to be sufficient evidence
because it was offered by stipulation, in lieu of officer testimony. Irion,
482 F.2d at 1245 n.10. Had the sufficiency of the report been challenged
at the close of evidence, the government “would no doubt have been
permitted to reopen its case and call the chemist as a witness or introduce
his written report into evidence[.]” Id. at 1245. Absent an enforceable
stipulation, such a trial tactic would not conform with the Federal Rules
of Evidence, nor any rational understanding of the Confrontation Clause.
See, e.g,. Bullcoming v. New Mexico, 564 U.S. 647, 660 (2011); Davis v.
Washington, 547 U.S. 813 (2006).
BOGLE V. GARLAND 39
offered to establish. They also may find that
certain features of the police report itself—
such as its level of detail, internal
consistency, and quality—independently
support the probable accuracy of the relevant
information contained therein.
Id.In its evaluation of the police report, the majority
conflates the standards for admission of evidence in an
immigration proceeding with the government’s ultimate
burden of proof. While the admission and limited
consideration of the police report may not have been
“fundamentally unfair,” the uncorroborated and unverified
police report here does not meet the government’s burden of
“clear and convincing” evidence. As discussed below,
Bogle has asserted the defense of lack of knowledge. The
report contains no information indicating that Bogle was
aware there was marijuana in the compartment in the trunk
before it was discovered by officers. There are also material
discrepancies between the crimes for which Bogle was
arrested and the charge to which he ultimately pled guilty,
calling the report’s probative value into question.
At best, the police report is incomplete. It mentions a
drug quantity without corroboration. Cf. Matter of Grijalva,
19 I. & N. Dec. at 722–23 (noting that the laboratory tested
the substance and verified it was marijuana); Matter of
Higgs, 2012 WL 3276581, at *2 (B.I.A. July 24, 2012)
(unpublished) (“[T]he Chemistry Laboratory Report only
verified . . . 15.77 grams of marijuana, having tested only
5 of 38 bags . . . . [I]t is the DHS’s burden to establish by
clear and convincing evidence that the respondent is
removable as charged.”).
40 BOGLE V. GARLAND
Additionally, although the report indicates that
photographs were taken of the bags of marijuana, including
where and how they had been discovered, the government
did not produce those photographs. This alone is enough to
cast shade where there should be light. The incompleteness
of the report detracts from its reliability, casts doubt on its
credibility, and refutes the majority’s belief that it is
sufficiently detailed and reliable to obviously represent the
factual circumstances of Bogle’s final plea. See, e.g, Muniz
v. Amec Const. Mgmt., Inc., 623 F.3d 1290, 1297 (9th Cir.
2010) (incomplete nature of records detracted from
credibility); O’Doan v. Sanford, 991 F.3d 1027, 1046 (9th
Cir. 2021) (“Police reports can be written quickly, at odd
hours, and with other law enforcement matters pressing”).
Here, we are left with only the police report’s
uncorroborated rendition of the quantity of the drugs, and
where and how the drugs were located in the rental car.
Those reliability deficiencies might be surmountable, as the
majority concludes, if the question before us were whether
the car physically contained more than 30 grams of
marijuana. Those deficiencies, however, pale in comparison
to the report’s lack of probative value as to the only question
actually before the BIA or the Court: To what crime did
Bogle plead guilty? The ultimate failing in the government’s
evidence is that it does not answer the question of what crime
Bogle was convicted. The crime, Bogle argues, 5 is different
from what he was arrested for, because he lacked sufficient
knowledge—mens rea—to have been convicted of an
offense involving the quantify of marijuana in the trunk’s
compartment.
5
Below, I address the frequency with which Bogle has made this
argument.
BOGLE V. GARLAND 41
The Georgia court’s records documenting Bogle’s
conviction do not tie the bags of marijuana found in the trunk
to Bogle’s conviction. Unlike the alien in Nijhawan who
stipulated at sentencing that the losses were well over
$10,000, 557 U.S. at 42–43, Bogle did not stipulate to
possessing more than 30 grams of marijuana. There is no
other “earlier sentencing-related material” like the Pre-
Sentence Report (“PSR”) relied on in Fuentes. 788 F.3d at
1883 (“[T]he PSR states that the plea agreement stipulated
to an amount of funds laundered of ‘more than $70,000.’”).
This Court’s prior analysis of the evidentiary value of the
indictment as compared to the PSR in Fuentes is instructive.
There, the BIA initially relied on the factual description of
overt acts that were incorporated into a conspiracy charge to
which the alien had pled guilty. Fuentes, 788 F.3d at 1182.
This Court intoned that, “to sustain a [money laundering]
conviction, an overt act need not be proved, and overt acts
alleged in a money laundering conspiracy indictment are
‘not admitted by a plea.’” Id. Thus, this acknowledged that
“a guilty plea only ‘admits the facts constituting the elements
of the charge.’” Id. (quoting United States v. Cazares,
121 F.3d 1241, 1246 (9th Cir. 1997)).
In Fuentes, because facts incorporated into the
indictment were not an element of the underlying offense to
which the alien pled guilty, this Court concluded that “[t]he
BIA’s reliance on these counts incorporated by reference
was not fundamentally fair and does not establish by clear
and convincing evidence, as required under Nijhawan to
prove specific circumstances” to which the alien pled guilty.
Fuentes, 788 F.3d at 1182. The Court went on to excuse the
BIA’s error as harmless given the contents of the PSR. Id.
The PSR described the plea agreement as containing a
stipulation as to the amount laundered. Id. The Court
42 BOGLE V. GARLAND
concluded that the BIA could rely on the PSR, and that it was
both fundamentally fair evidence, and clear and convincing
evidence of the amount laundered. 6 Id.
The police report in this case suffers from even greater
defects than the indictment in Fuentes, which this Court
rejected as being neither fundamentally fair, nor clear and
convincing evidence. 788 F.3d at 1182. Reliance on such
records makes a mockery of the “fundamentally fair
procedures” anticipated by immigration statutes and relieves
the government of its obligation to meet its “‘clear and
convincing’ standard.” Nijhawan, 557 U.S at 41–42
(quoting 8 U.S.C. 1229a(c)(3)(A)); see Fuentes v. Lynch,
788 F.3d 1177, 1182 (9th Cir. 2015). Grigoryan v. Barr, 959
F.3d 1233, 1240 (9th Cir. 2020) (quoting Angov v. Lynch,
788 F.3d 893, 898 (9th Cir. 2015)) (noncitizens “must be
afforded ‘the full panoply of procedural due process
protections’ under the Constitution[.]”).
Here, again, there is no indication that the police report
was a part of the factual basis for Bogle’s guilty plea. Bogle
was charged with two crimes: possession of an ounce or
more of marijuana, and possession with intent to distribute.
He pled guilty to possessing an ounce or more of marijuana.
The possession with intent to distribute was dismissed,
“NOL PROS[d.]” 7 That dismissed charge is the only charge
Bogle faced that would be consistent with the quantity of
marijuana found in the trunk. The dismissal of that charge
6
It is worth noting that, in the normal course, a PSR is tested. The
parties have a right to object, and a court decides where the truth lies by
a preponderance of evidence. See Fed. R. Crim. P. 32(f).
7
NOL PROS[d] is short for Nolle Prosequi — Latin for “unwilling
to prosecute.” https://www.law.cornell.edu/wex/nol_pros (last visited
November 29, 2021).
BOGLE V. GARLAND 43
strongly suggests that the marijuana in the trunk did not form
the factual basis for Bogle’s plea of guilty, and creates
significant ambiguity as to whether he pled guilty to
possession of more or less than 30 grams.
IV. Bogle’s Knowledge
Bogle’s knowledge of the existence of the drugs, and his
intent regarding them, would have been a critical element of
any underlying conviction the prosecution hoped to obtain.
In a drug possession case based upon
circumstantial evidence, the State must
adduce evidence establishing a meaningful
connection between the defendant and the
drugs. Mere presence, without proof of
participation, is insufficient to support a
conviction. Rather, the state must show that
the defendant had the power and intent to
exercise control over the drugs.
Wright v. State, 690 S.E.2d 654 (Ga. Ct. App. 2010)
(citations and quotation marks omitted, emphasis added).
One plausible reading of the record is that the prosecutor
recognized that Bogle had a potentially valid defense to any
charge related to the marijuana in the trunk, and exercised
prosecutorial discretion to obtain a plea to something less
than that reliant on the quantity of marijuana found in the
compartment in the trunk. 8 It is not Bogle’s burden, of
8
Bogle admits and the police report itself suggests that there was
some marijuana in the cabin. The officer noted leafy flakes on the
console, and the odor of marijuana. Does the majority assume the officer
was able to smell the contents of sealed bags in the sealed compartment
of the closed trunk? The record contains no findings on that issue. In
44 BOGLE V. GARLAND
course, to prove that the compromise struck was specifically
to an amount between 28.36 and 30 grams, it is the
government’s burden to prove that the compromise was to
some amount in excess of 30 — and for this Court to find
that substantial evidence supports the BIA’s corresponding
conclusion. While Bogle was initially charged with an
offense consistent with the three bags, ultimately the
prosecutor, looking at all the evidence, made the decision
that the only charge worthy of pursuit was one which did not
necessarily involve possession above the 30-gram threshold.
V. Bogle’s Plea and Conviction
I will not join my colleagues in ignoring an element of a
crime for which they conclude Bogle was convicted,
knowledge of possession of three gallon-sized bags of
marijuana. Nor can I support the majority’s assumption that
the prosecutor’s decision to drop the higher charge is not
relevant to our analysis. Indeed, had it chosen to do so, the
prosecution could have sought to prove intent to distribute
based on the weight of the marijuana found in the trunk
alone. 9
the context of criminal suppressions, at least one court within this Circuit
has found that “while the fact that [an officer] ‘detected the smell of
marijuana from the passenger compartment . . . certainly established
probable cause to believe that contraband was stored in the passenger
compartment, the odor did not raise a fair probability that additional
evidence would be uncovered in the trunk, let alone the [sealed
container] in the trunk.’” United States v. Chavez, No. 15CR285LHK,
2018 WL 4207350, at *7 (N.D. Cal. Sept. 4, 2018) (quoting an earlier
order in the same case).
9
See Benton v. State, 847 S.E.2d 625, 628 (Ga. Ct. App. 2020) (“The
State may show intent to distribute in many ways, including expert
testimony that the amount of contraband possessed was inconsistent with
BOGLE V. GARLAND 45
The government urges the Court to consider that, as a
practical matter, the evidence required to meet its burden
may be challenging to obtain given that the plea bargaining
process can be opaque: the “necessity” of ensuring Bogle
pled guilty to the more severe charge “would be lost upon
prosecutors who make charging decisions based on any
number of factors.” The majority appears to agree, and
asserts that saving on the “potential cost of substantial
expenditures of agency time[]” supports its conclusion.
Opinion at 31 (citation and quotation marks omitted).
That prosecutors make charging and plea-bargaining
decisions based on a variety of factors is the very reason that
the record before us is insufficient. The significant deviation
between the police report and the prosecutor’s decision to
dismiss the distribution offense compels a requirement for a
greater factual showing than the government has made.
Furthermore, the Supreme Court has made clear that it is
not appropriate for courts to consider those exact policy
arguments.
Record-keeping problems promise to occur
from time to time regardless who bears the
burden of proof. And, as in most cases that
come our way, both sides can offer strong
policy arguments to support their
positions. . . . It is hardly this Court’s place to
pick and choose among competing policy
arguments like these along the way to
selecting whatever outcome seems to us most
personal use[.]”) (citations and quotation marks omitted); Vines v. State,
675 S.E.2d 260, 262 (Ga. Ct. App. 2009) (“three, gallon-size bags of
marijuana weighing 2.9 pounds” inconsistent with personal use).
46 BOGLE V. GARLAND
congenial, efficient, or fair. Our license to
interpret statutes does not include the power
to engage in such freewheeling judicial
policymaking. Congress was entitled to
conclude that uncertainty about an alien’s
prior conviction should [] redound to his
benefit. Only that policy choice, embodied in
the terms of the law Congress adopted,
commands this Court's respect.
Pereida, 141 S. Ct. at 766–67.
To affirm the BIA on this record would allow
immigration authorities to undermine the prosecutor’s
exercise of discretion, and disregard Bogle’s presumption of
innocence as to any conduct beyond the scope of his plea.
Immigration authorities may not condemn a defendant using
the clear and convincing standard when a prosecutor, in
bringing and resolving charges, is required to consider that
he must prove his case beyond a reasonable doubt. If
concerns regarding that heavy burden led the prosecutor to
make some concession, the alien retains the benefit of the
bargain he struck at the time he entered his plea of guilty.
Immigration proceedings are not an opportunity to strip an
alien of that benefit by retrying facts, using a lower standard
of proof. Nor should they present an opportunity for an IJ,
to adjudicate free of the Constitutional protections, like the
right to cross examine and confront adverse evidence or
statutory protections like the rules of evidence that
traditionally ensure fair resolutions for criminal defendants.
Rather, Congress requires immigration authorities to
clearly and convincingly demonstrate that the terms of a
prior conviction compel removal. Regarding the 30-gram
limit, the government must show that the weight of the drugs
BOGLE V. GARLAND 47
was “tethered” to the actual “offense of conviction,” not
“acquitted or dismissed counts or general conduct[.]”
Nijhawan, 557 U.S. at 42 (citation omitted). 10 The majority
ignores this aspect of Nijhawan.
The majority’s quotations from Ku v. Att’y Gen.,
912 F.3d 133, 142 (3d Cir. 2019) do not indicate otherwise.
The key passage relied on by the majority works for, not
against, Bogle:
Where, as here, “the record before us
contains no plea agreement, and certainly not
one which explicitly spells out the [quantity
of marijuana] to which [Bogle] pleaded
guilty,” we will not assume that Bogle
pleaded guilty to possessing some lower
quantity of marijuana as “part of an explicit
bargain between [him] and the Government”
merely because “the Government could have
charged [him] with a [more severe] crime[]
but did not.” “[P]ure conjecture” cannot
sever the tie between Bogle’s conviction and
the quantity of marijuana recorded in the
police report, “[a]bsent a clear and
10
See also Rampersaud v. Barr, 972 F.3d 55, 60 (2d Cir. 2020)
(“Specifically, the BIA and IJ failed to consider, as is required by
Nijhawan, whether more than $10,000 in victim losses were ‘tied to the
specific count[ ] covered by [Rampersaud’s] conviction’ for insurance
fraud.”) (quoting Nijhawan, 557 U.S. at 42); Sokpa-Anku v. Lynch,
835 F.3d 793, 796 (8th Cir. 2016) (same, collecting cases); Singh v. Att’y
Gen. of the United States, 677 F.3d 503, 508 (3d Cir. 2012) (same);
Knutsen v. Gonzales, 429 F.3d 733, 739–40 (7th Cir. 2005) (“The better
result here, and one consistent with the statute, is that the court should
focus narrowly on the loss amounts that are particularly tethered to
convicted counts alone.”) (cited favorably in Nijhawan).
48 BOGLE V. GARLAND
unmistakable indication of [the government’s
stipulation to some lesser quantity] in a
written plea agreement.”
Opinion at 29–30 (quoting Ku, 912 F.3d at 142) (emphasis
and alterations added)).
To begin with, Ku’s record contained a judgment of
conviction which “include[d] a total loss determination of
$954,515.71 and [an] order[] [of] restitution in that amount.”
Ku, 912 F.3d at 137. These documents unambiguously
defined Ku’s loss amount as well above the relevant $10,000
threshold. Given that “the loss caused by the conduct
underlying the offense of conviction establishes the outer
limits of a restitution order[,]” Hughey v. United States,
495 U.S. 411, 420 (1990) (emphases added), the judgment
and restitution order were obviously clear and convincing
evidence supporting removal. 11
The excerpts quoted by the majority appear in a
discussion regarding deference for plea agreements
specifically designed to allow defendants to avoid collateral
immigration consequences. 12 Ku argued that her plea deal
11
Furthermore, the oral argument in Ku made clear that Ku’s PSR
was adopted by the criminal District Court in full, and reflected that she
received a 14-point enhancement under the sentencing guidelines
because the losses involved in her conviction exceeded $400,000.
12
In contrast, the record here reveals that the Georgia court intended
to allow Bogle to avoid such consequences—he pled under a statute
decreeing that his conviction “shall not be deemed a conviction … for
purposes of disqualifications or disabilities imposed by law upon
conviction of a crime.” Ga. Code § 16-13-2(a). While the statute does
not override federal immigration law, if the majority seeks a “clear and
unmistakable indication” of the government’s intent as to the collateral
consequences Bogle would suffer, the record here contains one.
BOGLE V. GARLAND 49
was struck in accordance with such an agreement. Ku,
912 F.3d at 141–43. Unlike the genuine ambiguity in
Bogle’s record, Ku’s argument was properly described as
“pure conjecture.” Not only did the restitution order belie
the existence of any such agreement, Ku’s sentencing
memorandum expressly acknowledged that the conviction
subjected her to automatic deportation. Id. at 142–43.
Finally, while the Third Circuit rejected Ku’s urging that the
$954,515.71 figure, if accurate, would have supported more
serious charges as a basis to believe that she had entered into
such an agreement with the prosecutor, id. at 142, Bogle’s
argument is neither so speculative, nor unsupported by the
record. Ku’s argument ran openly counter to the criminal
court’s factual findings, whereas Bogle’s is supported both
by his assertion of a potentially valid affirmative defense,
and the fact that the prosecutor ultimately reconsidered, and
dropped, the original higher charge. 13
The majority’s opinion reveals that it has been more
influenced by the circumstances of Bogle’s vacated Arizona
drug conviction than it admits, 14 and appears to ignore the
13
There is no dispute that Bogle pled guilty “[p]ursuant to an
agreement between the District Attorney’s and Defendant’s defense
counsel and agreed to by the Court[,]” the government has simply not
produced direct evidence of the agreement’s specifics, and the record
does not disclose whether the agreement was reduced to writing. The
majority’s insistence that I have “invented” such an agreement, Opinion
at 30, n.14 is belied by the record.
14
The majority asserts the Arizona conviction is an unrelated
offense with no bearing on its analysis, but repeatedly references it in
support of its decision. Opinion at 8 n.1, 28 n.12.
50 BOGLE V. GARLAND
consequence of the prosecutor’s dismissal of the Georgia
distribution count. 15
Simply put, the government is required to demonstrate
what conduct Bogle pled guilty to committing, in Georgia,
on that isolated occasion. It has not done so. Immigration
consequences flow exclusively from a qualifying conviction,
not “acquitted or dismissed counts or general conduct[.]”
Nijhawan, 557 U.S. at 42 (citation omitted). Ultimately,
“whatever degree of ambiguity remains about the nature of
[Bogle’s] [only qualifying] conviction, and whatever the
reason for it, one thing remains stubbornly evident: [the
government] has not carried [its] burden of showing that he
was not convicted of a crime involving” less than 30 grams
of marijuana. Pereida, 141 S. Ct. at 763.
That Bogle has not challenged how much marijuana was
in the trunk has no bearing on the question before this Court.
By focusing on the wrong question, the majority
impermissibly shifts the government’s burden to present
clear and convincing evidence to support its case onto the
alien. “Congress knows how to assign the government the
burden of proving a disqualifying conviction[,]” Pereida,
141 S. Ct. at 761, and, here, placed the burden for finding an
alien removable squarely on the shoulders of government.
See Avina-Renteria v. Holder, 434 F. App’x 626, 628 (9th
Cir. 2011) (“Mere acquiescence, or failure to contest an IJ’s
statement that admissions have been made, does not meet
the government’s burden of proving removability by clear
and convincing evidence.”) (citing Cortez-Acosta, 234 F.3d
15There is an obvious relationship between the elements of the
dismissed count and the quantity of marijuana found in the compartment
in the trunk. The dismissal of that count is both relevant to our analysis
and creates ambiguity which favors Bogle.
BOGLE V. GARLAND 51
at 481–82) (emphasis added). “[A]n inconclusive record[,]”
which is all we have here, “is not sufficient.” Matter of
Davey, 26 I. & N. Dec. at 41.
“[T]he ties that legal residents develop to the American
communities in which they live and work, should not be
lightly severed.” Hernandez-Guadarrama, 394 F.3d at 682–
83. When the government has failed to meet its “heavy
burden of clear, unequivocal, and convincing evidence[,]”
Hernandez-Guadarrama, 394 F.3d at 679 (citations
omitted), the proper course is to reverse the BIA. See, e.g.,
Al Mutarreb v. Holder, 561 F.3d 1023, 1030–31 (9th Cir.
2009); Hernandez-Guadarrama, 394 F.3d at 683; Avina-
Renteria, 434 F. App’x at 629. Because the government has
not met its burden on this record, I would reverse the
decision of the BIA.
VI. No Further Proceedings are Warranted
The government has had ample opportunity to meet its
burden in the more than four years that have passed since it
initiated these proceedings. There have been nine hearings
at which it could have presented additional evidence.
Bogle has repeatedly raised the issues before the Court
today in prior proceedings. In his 2017 brief, Bogle,
proceeding pro se, argued: “The government has submitted
no evidence to show that Mr. Bogle was convicted of
possession of more than 30 grams of marijuana for his own
personal use.” He renewed objections made at the hearing
before the IJ, when his attorney explained: “[I]n Matter of
Davey, there were no police reports used in order to find
whether or not there were 30 grams of marijuana. So, I don't
know how [the government] got that out of the Matter of
Davey, because no police reports were used, only the charges
and the sentence and orders.” Bogle went on to argue in his
52 BOGLE V. GARLAND
brief: “The government did not submit sufficient evidence to
prove Mr. Bogle has been convicted of a controlled
substance offense, other than an offense where he possessed
a small amount of marijuana.” Because the only evidence
related to the Georgia conviction concerning an amount of
marijuana in excess of one ounce is the police report, there
can be no doubt Bogle was arguing that it — the police report
— was insufficient proof to trigger the 30-gram threshold.
After the case was remanded on other grounds, in 2019,
Bogle, both when proceeding pro se and subsequently
through counsel, continued to raise that there was
insufficient evidence to meet the government’s burden to
prove that his conviction exceeded the 30-gram threshold,
and that the police report should not have been admitted. 16
Furthermore, Bogle’s 2019 brief before the BIA not only
spent five pages arguing for the exclusion of the police report
generally, but specifically advanced the very arguments
Bogle presses here:
The only the [admissible] document in the
record relating to the Georgia conviction is
the Final Disposition in Criminal Action,
identified as Exhibit 23, which shows that
Mr. Bogle was sentenced solely in relation to
a charge of V.G.C.S.A. 16-13-30(J)(1) (Poss
of Marijuana, more than an oz). No other
indication of an amount is mentioned in the
16
In response, the IJ incorrectly stated on multiple occasions that
Bogle, rather than the government, bore the burden on that question,
raising further concerns regarding the IJ’s assessment of the police
report.
BOGLE V. GARLAND 53
final disposition. As such, the record in this
case is inconclusive.
The charge to which Mr. Bogle was
sentenced does not identify the particular
amount, other than “more than an ounce”.
There is no charging document, plea
agreement, plea colloquy, or other document
in the record that reveals the factual basis for
the sentence. Because Mr. Bogle’s arguendo
“conviction” could have rested on facts that
do not relate to no more than 30 grams of
marijuana, the Court cannot conclusively
connect the arguendo “conviction” to what is
a controlled substance conviction under INA
§ 237(a)(2)(D)(i), the sole remaining ground
of removability claimed by the DHS.
The government has had sufficient notice and multiple
opportunities to correct its own error by supplementing its
evidence. Despite these opportunities, and the benefit of this
Court’s analysis regarding the indictment in Fuentes, the
government has taken no steps to meet its burden. Given
that the immigration authorities have been applying the
circumstance-specific approach throughout Bogle’s
proceedings, the government cannot claim it was limited in
what it could introduce and rely on, and now needs an
opportunity to expand the scope of its submissions. Cf.
Kawashima v. Holder, 615 F.3d 1043, 1056–57 (9th Cir.
2010), aff’d, 565 U.S. 478 (2012) (Remanding for further
factual findings on rehearing after intervening Supreme
Court precedent held that the circumstance-specific, rather
than categorical, approach applied, and describing how this
Court has “distinguished between circumstances in which
remand is necessary to permit the BIA to apply its expertise
54 BOGLE V. GARLAND
in reconsidering evidence and circumstances in which
remand is unnecessary because the BIA exercised its
expertise before the case came before us.”). It is time for
this matter to come to an end.
While remand is the “ordinary practice[,]”the
government has given us no reason to grant such relief. See
Medina-Lara v. Holder, 771 F.3d 1106, 1118 (9th Cir. 2014)
(“The government has given us no reason to provide it a third
bite at the apple[.]”) (citations and quotation marks omitted);
Kureghyan v. Holder, 338 F. App’x 622, 624 (9th Cir. 2009)
(memorandum) (“[R]emand to the agency would serve little
purpose other than providing the DHS with an unfair second
bite at the apple.”). Plainly stated, “[t]here is no clear and
convincing evidence in the record linking” the 2.94 pounds
of marijuana in the trunk to Bogle’s conviction, “the
government has not suggested how it would cure this
deficiency on remand[,]” and the government has already
amply litigated the 30-gram threshold as it relates to the
Georgia conviction. Medina-Lara, 771 F.3d at 1118–19.
Accordingly, I would grant Bogle’s petition.