The U.S. Court of Appeals for the Fifth Circuit recently pushed back against the BIA’s efforts to expand the range of low-level drug offenses that can result in removal. In Flores Esquivel v. Lynch, No. 13-60326 (5th Cir. October 1, 2015), a divided panel of the Fifth Circuit took issue with the Board’s narrow construction of a key exception to the controlled substance offense basis of deportation.
This case involved an LPR convicted of two misdemeanor possession of marijuana crimes in Texas: one in 2003 and the other in 2011. The first consisted of getting caught as an 18-year-old with a small amount of marijuana inside his car when it was in the parking lot of his high school. Id. at 2. Neither conviction proved problematic in terms of his immigration status until he went to México briefly in 2012. Upon his return, DHS put him in removal proceedings. He conceded that he was removable based on his 2011 conviction, but sought cancellation of removal. For different reasons, the immigration judge and the BIA concluded that he was not eligible for cancellation of removal because his 2003 conviction triggered the so-called stop-time rule such that he did not accumulate the necessary seven years of continuous residence. Id. at 3.
Taking up the BIA’s position, the Fifth Circuit heard a challenge brought by Flores Esquivel that his conviction fit within the personal use exception to the controlled substance basis of deportability. That language allows a migrant to avoid being found deportable if convicted of “a single offense involving possession for one’s own use of 30 grams or less of marijuana….” In an earlier line of cases (one of which I blogged about here), the BIA took the position that this exception applied only to simple possession offenses, or, to quote the Fifth Circuit’s summary of the BIA’s stance, “the ‘least serious’ drug offenses under the law of the state in which they were committed.” Id. at 1-2. As the Fifth Circuit explained, “in the BIA’s view, ‘[t]he personal-use exception is not intended or understood by Congress to apply to offenses that are significantly more serious than simple possession by virtue of other statutory elements that greatly increase their severity.’” Id. at 6 (quoting Matter of Moncada-Servellon, 24 I&N Dec. 62, 67 (BIA 2007)). Flores-Esquivel’s death knell was the location of his 2003 conviction: in a school zone. Id. at 8.
Adding this simple possession limitation, the Fifth Circuit concluded, is out of step with the personal use exception’s plain language. Id. at 6. “Moncada-Servellon’s interpretation reads into the text of the personal-use exception a requirement that simply isn’t there.” Id. at 7. Consequently, the court rejected the “least serious” drug crime requirement. Instead, it clarified that the personal use exception has four requirements: “the offense must be (1) a single offense; (2) involving possession of one’s own use; (3) of 30 grams or less; (4) of marijuana.” Id. at 4-5. Because Flores Esquivel proved that he satisfied those requirements, the court determined that he met the personal use exception’s requirements. Consequently, his 2003 conviction did not trigger the stop-time rule on this basis. The BIA did not address the possibility that Flores Esquivel may be ineligible because he has multiple convictions, thus it’s not a surprise that the Fifth Circuit didn’t venture down that path.