Wayne Grant v. Atty Gen USA ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2311
___________
WAYNE GRANT,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A074-990-040)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2012
Before: FUENTES, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: August 14, 2012 )
___________
OPINION
___________
PER CURIAM
Wayne Grant petitions for review of a decision of the Board of Immigration
Appeals (BIA). For the reasons below, we will deny the petition for review.
Grant entered the United States from Jamaica in 1994 and became a legal
permanent resident in 1999. In December 2008, he was charged as removable for having
been convicted of a controlled substance violation. He challenged his removability and
applied for cancellation of removal. After a hearing, an Immigration Judge (IJ) found
Grant removable but granted cancellation of removal. On the Government’s appeal, the
BIA vacated the grant of cancellation relief and ordered Grant removed to Jamaica.
Grant filed a petition for review, and we remanded the matter on the Government’s
motion for the BIA to address Grant’s arguments regarding his removability.
On remand, the BIA determined that Grant was removable because he had been
convicted of a controlled substance offense other than a single offense involving
possession for his own use of 30 grams or less of marijuana. Grant filed a petition for
review. We have jurisdiction under 8 U.S.C. § 1252 and exercise de novo review over
the BIA’s legal conclusions. Singh v. Att’y Gen., 677 F.3d 503, 508 (3d Cir. 2012).
Removability
An alien is removable if he has been convicted of an offense relating to a
controlled substance other than 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). The Government must
show by clear and convincing evidence that an alien is removable. 8 U.S.C.
§ 1229a(c)(3)(A).
Grant was convicted of possession of a controlled substance in violation of 35 Pa.
C.S. § 780-113(a)(16). That statute does not include the amount or type of the controlled
substance as an element of the crime. Because it was not clear from looking at the statute
2
whether Grant’s conviction fell within § 1227(a)(2)(B)(i), the BIA used a modified
categorical approach. It relied on an explicit factual finding Grant had assented to in state
court: his stipulation to a seizure analysis of the controlled substance as involving 67.77
grams of marijuana. It also noted that Grant had asked the trial court to consider only the
marijuana he actually had in his possession.
Citing Nijhawan v. Holder, 557 U.S. 29 (2009), the BIA concluded in the
alternative that the language of § 1227(a)(2)(B)(i) invited inquiry into the underlying
facts of the case. Relying on Grant’s stipulation to the seizure analysis of the amount and
type of drugs involved, the BIA used a circumstance-specific approach to determine that
the Government had shown by clear and convincing evidence that Grant’s conviction
involved more than 30 grams of marijuana.
Grant argues that our decisions dictate that we must use only the categorical or
modified categorical approach in determining whether his conviction falls within
§ 1227(a)(2)(B)(i). Under the categorical approach we look only to the statute of
conviction to determine whether an offense falls into a category. Singh v. Ashcroft, 383
F.3d 144, 147-48 (3d Cir. 2004). As noted above, the statute of conviction does not
contain the drug quantity as an element of the offense; thus, the categorical approach
does not allow us to determine if Grant’s conviction qualifies. Moreover, the cases Grant
cites concern whether convictions for violating 35 Pa C.S. § 780-113(a)(16) qualify as
aggravating felonies for involving illicit trafficking in a controlled substance. See
Evanson v. Att’y Gen., 550 F.3d 284 (3d Cir. 2008); Jeune v. Att’y Gen., 476 F.3d 199
3
(3d Cir. 2007). Here, we must determine whether Grant’s conviction was a controlled
substance offense “involving thirty grams or less of marijuana” for personal use.
The BIA first used a modified categorical approach. This approach is used when
the statute is phrased in the disjunctive—when there are several ways the statute could
have been violated—and some conduct leading to a conviction would not meet the
definition at issue. See Jean-Louis v. Att’y Gen., 582 F.3d 462, 466 (3d Cir. 2009).
Here, the criminal statute is not phrased, in relevant part, in the disjunctive. Grant was
charged with “knowingly and intentionally possess[ing] a controlled or counterfeit
substance unlawfully.” A.R. at 558. We need not determine whether the BIA erred in
applying the modified categorical approach, because it alternatively, and correctly, used a
circumstance-specific approach to conclude that Grant’s conviction rendered him
removable.
In Nijhawan, the Supreme Court used a circumstance-specific approach in
determining whether the alien’s conviction qualified as “an offense that . . . involves
fraud or deceit in which the loss to the victim or victims exceeds $10,000.” See 8 U.S.C.
§ 1101(a)(43)(M)(i); 557 U.S. at 36. Here, § 1227(a)(2)(B)(i) does not describe a generic
crime but rather includes similar qualifying language exempting convictions for
possession of thirty grams or less of marijuana for personal use. Thus, it refers to the
“particular circumstances in which an offender committed a (more broadly defined)
[controlled substance] crime on a particular occasion.” Nijhawan, 557 U.S. at 32. Thus,
we may inquire into the specific circumstances of Grant’s conviction. The question then
4
becomes what materials may be relied upon when using the circumstance-specific
approach.
The Supreme Court in Nijhawan permitted the use of a stipulation in a sentencing
document to support a finding that the loss exceeded $10,000. Nijhawan, 557 U.S. at 42-
43. The Court rejected any artificial limit on the evidentiary sources to which the court
can look in determining whether the Government has carried this burden. Nijhawan, 557
U.S. at 41 (rejecting suggested limitation of sources to charging documents, jury
instructions, special jury findings, judge-made findings, written plea documents, and plea
colloquy). In using the circumstance-specific approach, immigration courts should use
fundamentally fair procedures that give an alien an opportunity to rebut the
Government’s claim that a prior conviction qualifies. Id.
The criminal information charged Grant with unlawfully possessing a controlled
substance without reference to the amount. A.R. at 558. In their testimony at the bench
trial, police officers described witnessing Grant possess marijuana on two occasions.
One involved Grant handling a bag containing over 60 grams of marijuana, and on the
other, Grant was stopped with a bag containing over 400 grams of marijuana in his car.
Over 100 grams of marijuana were found in Grant’s home after he was arrested. Grant’s
counsel stipulated to the seizure analysis for the bag of marijuana found in Grant’s car.
In her closing, Grant’s counsel asked that the Court not hold Grant responsible for the
marijuana found inside his home because there was another person in the bedroom where
the marijuana was found. She also argued that the Commonwealth had not proved that
the bag with 60 grams was the same bag handled by Grant. As for the bag containing
5
over 400 grams of marijuana, she argued that the bag was put in the car by someone else,
was closed, and that Grant did not intend to exercise dominion and control over it. A.R.
at 454-64.
In convicting Grant of possession of marijuana, the trial court necessarily found
Grant guilty beyond a reasonable doubt based on his possession of either the bag with
over 60 grams, the bag with over 400 grams, or the more than 100 grams of marijuana in
his home. Grant could not have been convicted based on an amount of 30 grams or less.
Grant argues that the trial transcript does not possess the “high indicia of
reliability” required. However, the testimony considered was given under oath, subject to
cross-examination, and was sufficiently reliable for the trial court to find Grant guilty
beyond a reasonable doubt. The BIA did not err in determining that Grant’s conviction
involved more than 30 grams of marijuana and that he is removable.
Cancellation of removal
Because Grant is removable under § 1227(a)(2)(B)(i), we lack jurisdiction over the
BIA’s discretionary determination that Grant is not entitled to cancellation of removal
except to the extent that he raises constitutional issues or questions of law. 8 U.S.C.
§ 1252(a)(2)(C) & (D).
In its December 2009 decision, the BIA determined that Grant’s convictions
involved serious criminal activity. It mentioned the violent attack on his ex-wife, his
conviction for theft by deception, and his admission to obtaining drugs for resale. It
noted his positive equities of family support in the United States, providing financially
6
for his family, and his residence since 1994. The BIA concluded that discretion should
not be exercised in favor of Grant with respect to cancellation of removal.
On remand, Grant argued that the BIA wrongly determined that his criminal
convictions were serious, failed to defer to the IJ’s factual findings, and failed to consider
all the evidence. The BIA disagreed. It noted that the facts surrounding Grant’s crimes
remained the same, and it had simply exercised its discretion in weighing the positive and
negative factors. It pointed out that the police reports implicated Grant in an ongoing
marijuana sales operation, and that Grant did not dispute these facts before the IJ.
Before us, Grant contends that the BIA erred by engaging in de novo fact finding,
applying incorrect legal standards, and failing to consider all the evidence. Grant argues
that the BIA’s determination that his criminal history was serious was a factual finding
that the BIA was not permitted to make. However, as explained by the BIA, it simply
gave more weight to Grant’s criminal record in balancing his equities in its de novo
review of the IJ’s discretionary decision regarding cancellation of removal. 8 C.F.R.
§ 1003.1(d)(3)(ii) (“The Board may review questions of law, discretion, and judgment
and all other issues in appeals from decisions of immigration judges de novo.”)
Grant challenges the BIA’s determination that his controlled substance offense
involved 500 grams of marijuana and that he was implicated in an ongoing marijuana
sales operation. While Grant contends that he never trafficked marijuana, he admits that
the mother of his children asked him to purchase marijuana so that she could sell it for a
profit. He then obtained marijuana from a supplier and was stopped by the police. Brief
at 18; A.R. at 260-61, 298-303. The IJ noted that “[t]his conviction resulted in
7
respondent purchasing approximately $950 worth of marijuana for a female friend. He
kind of acted like a conduit between the friend and individual who respondent knew was
peddling marijuana in the neighborhood.” A.R. at 208. The BIA did not err in its
determination that Grant was involved in drug trafficking with a large amount of
marijuana.
Grant asserts that the BIA overlooked his long residency in the United States, his
family ties, hardship to his family on his removal, and his employment history. He also
argues that the BIA ignored the IJ’s findings regarding rehabilitation and recency of his
criminal convictions.
We have previously explained that the BIA is not required to “write an exegesis on
every contention. What is required is merely that it consider the issues raised, and
announce its decision in terms sufficient to enable a reviewing court to perceive that it
has heard and thought and not merely reacted.” Filja v. Gonzales, 447 F.3d 241, 256 (3d
Cir. 2006) (citation omitted). After Grant argued on remand that the BIA had overlooked
his long residency, his family ties, family hardship, and employment history, the BIA
noted that it had considered his rehabilitation and these other factors as well as the record
as a whole in its decision. A.R. at 5-6. Grant concedes that the BIA acknowledged his
strong family support. The BIA mentioned Grant’s long residency in the United States.
A.R. at 100. The BIA did not err or deny Grant due process in not explicitly addressing
every factor in its decision to deny cancellation of removal.
For the above reasons, we will deny the petition for review.
8