Anh Le v. Loretta Lynch

Case: 13-60664 Document: 00513392216 Page: 1 Date Filed: 02/23/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60664 United States Court of Appeals

Fifth Circuit

FILED

ANH LE, February 23, 2016

Lyle W. Cayce

Petitioner Clerk

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

Respondent

Petitions for Review of an Order

of the Board of Immigration Appeals

Before STEWART, Chief Judge, and CLEMENT, and ELROD, Circuit Judges.

CARL E. STEWART, Chief Judge:

IT IS ORDERED that the opinion previously filed in this case, Le v. Lynch, 810

F.3d 314 (5th Cir. 2016), is WITHDRAWN. The following opinion is

substituted therefor:

Petitioner Anh Le (“Le”) appeals the Board of Immigration Appeals’

(“BIA” or the “Board”) decision to uphold an immigration judge’s finding that

Le was statutorily ineligible for adjustment of status under Section

212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (“INA”). The Board

determined that Le failed to demonstrate that he was admissible to the United

States as a lawful permanent resident (“LPR”). Le also appeals the BIA’s

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No. 13-60664

denial of his motion for reconsideration. For the following reasons, the petition

for review is DENIED.

FACTUAL BACKGROUND

Le escaped Vietnam and arrived in Canada as a refugee in 1978. After

his arrival, he was convicted of two separate criminal offenses. The issues on

appeal stem from Le’s first arrest and conviction in 1991. 1 Le was arrested

after picking up a friend who possessed cocaine while Le was driving his

vehicle. Le was searched for drugs and taken to the police station to be

questioned but no drugs were found on his person. As a result of this arrest,

Le was fined $700 but served no jail time. Records from his arrest showed that

Le was convicted of possession of cocaine, a controlled substance offense,

although Le asserts that he has never used or possessed any illegal drugs. At

the time, Le had been living in Canada for approximately four years and was

studying English. He contends that he had not fully mastered the English

language and that he was not told, nor did he understand, the nature of the

criminal charge against him.

In 2002, Le was admitted to the United States on a thirty-day visitor’s

visa. In May of that same year, he was granted a nonimmigrant waiver of

inadmissibility for one year through 2003, allowing him to remain in the

United States. His wife, Thu Van Nguyen, became a naturalized United States

citizen in 2005 and filed an “immediate relative” visa petition on Le’s behalf in

2008. Le applied for adjustment of his status to lawful permanent resident in

2010 under 8 U.S.C. § 1255(a), based on Nguyen’s approved immediate relative

visa petition. On his application, Le indicated that he was previously

“arrested, cited, charged, indicted, fined, or imprisoned for breaking a[] law or

1In 1998, Le was arrested a second time after being approached by a police officer who

found him sitting in an idle car with the motor running while under the influence of alcohol.

2

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ordinance” and that he was not pardoned for that offense. He attached a

description of his criminal history that only listed his 1998 offense. 2

When reviewing his adjustment of status application, the Department of

Homeland Security (“DHS”) raised the question of whether Le was ineligible

for LPR status due to his 1991 controlled substance offense, pursuant to 8

U.S.C. § 1182(a)(2)(A)(i)(II). The Government challenged Le’s admissibility

and filed four documents in support of its position: a government inspection

worksheet noting that Le was convicted of and received a $700 fine for a drug

possession offense on January 11, 1991; a National Automated Immigration

Lookout System Inquiry noting that Le was refused entry into Toronto and had

at least one conviction for possession; a Canadian fingerprint report showing

Le’s photograph and fingerprint with a summary of a possession of narcotics

charge; and documentation from an Immigration and Naturalization Service

inspector showing that Le was inadmissible when he previously applied for

nonimmigrant status.

Le’s application was denied in April 2008. The Government commenced

removability proceedings in 2009 because Le had remained in the United

States beyond the 2003 expiration date of his nonimmigrant visitor visa. A

Notice to Appear was issued charging Le with remaining longer than

authorized.

PROCEDURAL HISTORY

I. Immigration Judges Law and Walton

At Le’s initial hearing in 2009 before Immigration Judge Phillip Law (“IJ

Law”), Le indicated that he would be seeking adjustment of status to lawful

permanent resident. DHS again raised the question of whether Le was

inadmissible because of his 1991 offense. At a second hearing in 2010, Le

2 See supra note 1.

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testified about his 1991 arrest in Toronto and stated again that he had no drugs

on his person at the time of his arrest and that he never used, purchased, or

sold illegal drugs. Although Le was represented by an attorney, he did not

have a translator when meeting with counsel prior to his court appearance. Le

was only able to use a translator while in court. He stated that the translator

explained to him that his classmate was buying and using cocaine, and that

the judge confirmed that because Le was the owner of the vehicle he was

charged as a result of picking up his classmate. Nevertheless, Le testified that

he was not charged with possession of narcotics or possession of cocaine.

Following Le’s testimony before IJ Law, he filed documentation from the

Canadian government indicating that he had received a pardon for his 1991

“Breach of the Narcotic Control Act” conviction and for his subsequent 1998

offense. Le also submitted a letter from the Canadian National Pardon Centre

(“NPC”), which explained that while a pardon “no longer reflect[s] adversely

on that person’s character, and removes any disqualification to which the

individual is subjected,” a pardon “does not erase the fact that an individual

was convicted of an offence(s) and has a criminal record.”

The letter informed Le that a pardon “may not be recognized by foreign

governments” and “will not guarantee entry or visa privileges to another

country.” Le submitted another letter which showed that the NPC cleared his

criminal record from his public file. The letter advised Le that the NPC would

destroy the last open record of his criminal charges from its system if Le did

not contact the NPC within two months. There is no record of Le contacting

the NPC during that two-month period.

In 2011, Le’s case was reassigned to immigration judge Richard Walton

(“IJ Walton”). While testifying before IJ Walton, Le reiterated previous

testimony concerning the 1991 conviction and IJ Walton found that Le’s

testimony was generally consistent with his testimony before IJ Law. IJ

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Walton determined, however, that Le was statutorily ineligible for adjustment

of status because he did not meet “his burden of proof to show he was not

convicted of an offense relating to a controlled substance” under 8 C.F.R. §

1240.8(d). IJ Walton found that Le could have, for example, “demonstrated

that the Canadian Narcotic Control Act encompasses offenses relating to drugs

not defined in our Controlled Substances Act (“CSA”)” or that “the information

contained in each of the [Government] exhibits is somehow incorrect or lacking

in probative value.” IJ Walton emphasized that the documentary evidence

submitted by both Le and the Government “consistently point[ed] to the

existence of a conviction for possession of a controlled substance, perhaps

cocaine.” He found that Le’s testimony that he “did not know why he was

arrested in 1991, and whether it was for a drug offense, [was] insufficient to

overcome the documentary evidence.” He noted that Le’s testimony, “while

credible, was taken over twenty years after an incident where he admitted that

he did not fully understand the charges brought against him because of a

language barrier.” Finally, IJ Walton determined that the Canadian pardon

did not nullify the conviction for United States immigration purposes. Le was

ordered removed to Canada, and he appealed to the BIA.

II. The BIA’s Review

Reviewing the decision de novo, the BIA affirmed IJ Walton’s denial of

the adjustment of Le’s status. The Board stated that it found ample evidence

in the record to support IJ Walton’s finding of a potential disqualifying drug

conviction, including Le’s criminal record print-out reflecting a fine and jail

time on a charge of possession of narcotics and Le’s own submission of a pardon

for his conviction. The BIA noted that, under the REAL ID Act, 8 U.S.C. §

1229a(c)(4)(A); 8 C.F.R. § 1240.8(d), Le bore the burden of resolving any

ambiguities in the record and that it was his burden to show that the drug

involved does not correspond to a controlled substance that would render Le

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inadmissible. The Board also agreed with IJ Walton that Le’s testimony did

not satisfy his burden of proof, particularly in light of his admission that he

lacked a clear understanding of the charge.

Finally, the BIA determined that Le was not relieved of his burden of

proof by asserting that the relevant records concerning his 1991 conviction no

longer existed. Although the Board acknowledged Le’s evidence that court

records of his convictions were no longer available and may have been

destroyed, the BIA noted that “while pardoned conviction records are removed

from public access and may be purged from the archives of local jurisdictions,

sealed records may be retained at the federal level.” The BIA advised Le of his

option to “apply to the Royal Canadian Mounted Police [(“RCMP”)] for the

release of any pardoned conviction records in its possession” and provided the

link to a website with the RCMP’s instructions for obtaining pardoned

conviction records.

Le appealed the BIA’s decision, which the BIA dismissed. Le filed a

motion for reconsideration. The BIA also denied Le’s motion. Le timely

petitioned this court for review of the BIA’s denial. Le now raises two issues:

(1) whether the BIA properly found Le ineligible for adjustment of Le’s

immigration status where there is evidence that Le may have been convicted

of a drug-related offense in Canada; and (2) whether the BIA abused its

discretion when it denied Le’s motion for reconsideration.

STANDARD OF REVIEW

In a petition for review of a BIA decision, we review legal and

constitutional issues de novo. See Sealed Petitioner v. Sealed Respondent, 567

F. App’x 231, 234 (5th Cir. 2014) (citing Enriquez-Gutierrez v. Holder, 612 F.3d

400, 406 (5th Cir. 2010)). Although “we generally only have authority to review

the BIA’s decision, . . . we may also review the [immigration judge’s] decision

when it has some impact on the BIA’s decision, as when the BIA has adopted

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all or part of the [judge’s] reasoning.” Id., 567 F. App’x at 234 (citing Enriquez-

Gutierrez, 612 F.3d at 407); see Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.

1997); see also Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012).

This court applies the substantial evidence standard to the BIA’s findings of

fact. See Soriano v. Gonzales, 484 F.3d 318, 320 (5th Cir. 2007). The

substantial evidence standard requires “that the [BIA’s] conclusion be based

upon the evidence presented and that it be substantially reasonable.”

Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996) (citation omitted).

Under this standard, this court will affirm the BIA unless the “evidence

compels a contrary conclusion” and is so compelling that no reasonable

factfinder could conclude against it. Id.

We review the BIA’s denial of a motion to reconsider under a highly

deferential abuse of discretion standard. See Lara v. Trominski, 216 F.3d 487,

496 (5th Cir. 2000); Osuchukwu v. INS, 744 F.2d 1136, 1141–42 (5th Cir. 1984).

The court will not find an abuse of discretion unless the decision is “capricious,

racially invidious, utterly without foundation in the evidence, or otherwise so

aberrational that it is arbitrary rather than the result of any perceptible

rational approach.” Osuchukwu, 744 F.2d at 1142.

DISCUSSION

I. Whether the BIA properly found Le ineligible for

adjustment of status where there is evidence that Le may

have been convicted of a drug-related offense in Canada.

We first address whether Le’s 1991 conviction renders him ineligible for

relief from removal. As a preliminary issue, the Government argues that Le is

inadmissible because Le committed a controlled substance offense in violation

of 8 U.S.C. § 1182(a)(2)(A)(i)(II). An alien who was inspected and admitted or

paroled into the United States may seek adjustment of status in order to obtain

permanent resident status in the United States. See 8 U.S.C. § 1255(a). The

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INA provides that an alien may have his status changed to lawful permanent

resident if: “(1) the alien makes an application for such adjustment, (2) the

alien is eligible to receive an immigrant visa and is admissible to the United

States for permanent residence, and (3) an immigrant visa is immediately

available to him at the time his application is filed.” 8 U.S.C. § 1255(a).

However, an alien is ineligible for adjustment of status if the alien is

convicted of, admits having committed, or admits committing acts which

constitute the essential elements of a violation of any law relating to a

controlled substance. 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), (h), 1255(c)(2), (h); Rana

v. Holder, 654 F.3d 547, 548 (5th Cir. 2011).

The propriety of the BIA’s decision regarding Le’s adjustment of status

and relief from removal rests on three sub-issues raised on appeal: (1) whether

the alien or the Government bears the burden of proof in determining whether

grounds for mandatory denial of Le’s application for relief do not apply; (2)

whether the evidence shows that this burden has been met; and (3) what effect,

if any, Le’s pardon has on his admissibility.

A.

Le contends that while an alien generally bears the burden of proving

that grounds for denial do not apply and that he is eligible for relief from

removal, he does not bear the burden of proof in this instance because the

statute proscribing Le’s conduct only “allocate[s] the burden of proof

concerning factual elements of eligibility.” Le contends that determining

eligibility, i.e., whether he was convicted of an offense relating to a controlled

substance, is a “question of law” and thus a burden which the Government

must bear. Le states that the burden of proof would have remained on him

unless the immigration judge or the BIA requested supporting documentation

that could not reasonably be obtained. Le argues that because he could not

obtain any additional information regarding his conviction, the ambiguity

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weighs in favor of finding that his offense did not relate to a controlled

substance. Le’s position on appeal is rooted in Supreme Court cases Moncrieffe

v. Holder and Descamps v. United States, decided after the submission of Le’s

brief to the BIA. Descamps v. United States, 133 S. Ct 2276 (2013); Moncrieffe

v. Holder, 133 S. Ct. 1678 (2013).

The Government counters that 8 U.S.C. § 1229a(c)(4)(A)(i) plainly places

the burden on Le. The Government disagrees with Le’s contention that Section

1229a only “allocate[s] the burden of proof concerning factual elements of

eligibility.” It alleges that the statutory language does not divide the eligibility

requirements for relief between those that involve a factual and legal

determination, but it solely applies to “the applicable eligibility requirements”

as a whole. This includes the requirement that an alien demonstrate that he

is not inadmissible for having a disqualifying conviction.

As a general rule, the Government may remove an alien and deny his

application for adjustment of status if grounds for mandatory denial of the

application may exist. See 8 C.F.R. § 1240.8(d) (emphasis added). However,

an alien may apply for relief or protection from this removal. See 8 U.S.C §

1229a(c)(4)(A). While the Government bears the burden of proving that an

alien is removable, § 1229a(c)(3)(A), the alien has the burden of proof to

establish that he satisfies the applicable eligibility requirements in order to

prove that any grounds for denial do not apply. § 1229a(c)(4)(A); see also 8

C.F.R. § 1240.8(d) (noting that the alien in a removal proceeding bears “the

burden of establishing that he or she is eligible for any requested benefit or

privilege and that it should be granted in the exercise of discretion”); Ramon-

Torres v. Holder, 637 F.3d 544, 548 (5th Cir. 2011); Vasquez-Martinez, 564 F.3d

at 715–16; Matter of Blas, 15 I&N Dec. 626, 629 (BIA 1974). When an alien’s

prior conviction is at issue, the offense of conviction itself “is a factual

determination, not a legal one.” Vasquez-Martinez v. Holder, 564 F.3d 712, 716

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(5th Cir. 2009). However, determining whether that conviction is a particular

type of generic offense is a legal question. See, e.g., Esparza-Rodriguez v.

Holder, 699 F.3d 821, 823–24 (5th Cir. 2012); Vasquez-Martinez, 564 F.3d at

716–17.

In Vasquez-Martinez, for example, an alien appealed the BIA’s

determination that he produced insufficient evidence to carry his burden of

proving that he was not an aggravated felon and therefore was ineligible for

cancellation of removal under 8 U.S.C. § 1229b(a)(3). See 564 F.3d at 715–16.

The alien argued that the burden of production was on the Government to

submit evidence of a prior aggravated felony conviction. Id. at 716. Relying

on 8 U.S.C. § 1229a(c)(4)(A)(i) and 8 C.F.R. § 1240.8(d), this court held that the

alien, not the Government, bears “the initial burden of production of evidence”

that he is eligible for discretionary relief. Id.

Other circuits similarly hold that an alien seeking relief from removal

bears the burden of proving that a conviction does not bar relief, even where

ambiguities in the record about an alien’s conviction exist. See Garcia v.

Holder, 584 F.3d 1288, 1289–90 (10th Cir. 2009). In Garcia, the Tenth Circuit

reasoned that construing ambiguity in the record against the Government

“effectively nullifies the statutorily prescribed burden of proof” and that “[t]he

fact that [the alien] is not to blame for the ambiguity surrounding his criminal

conviction does not relieve him of his obligation to prove eligibility for

discretionary relief.” Id. at 1290. Similarly, the Fourth Circuit has held that,

where the evidence of conviction is inconclusive, the burden remains on the

alien to prove eligibility for relief from removal. See Salem v. Holder, 647 F.3d

111, 116–20 (4th Cir. 2011).

Notwithstanding the general rule, Le cites, inter alia, the Second

Circuit’s decision in Martinez v. Mukasey as supporting his position that the

Government bears the burden to resolve any ambiguities in an inconclusive

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record. See 551 F.3d 113 (2d Cir. 2008). However, Martinez does not clearly

state that the burden shifts to the Government to prove a lack of eligibility for

relief where a record is inconclusive. In Martinez, the court held that in an

alien’s attempt to prove his burden, he must “show[] that he has not been

convicted of [the underlying criminal offense].” Id at 122. Contrary to Le’s

contention, the court did not shift the burden to the Government, but stated

that in proving its burden, the alien may not delve into the particular facts

surrounding his conduct when determining whether his burden is met, but

must solely look to the language in the statute of conviction. 3 Id.; accord

Salem, 647 F.3d at 116–17 (concluding that fidelity to the INA requires that

the noncitizen, as the party bearing the burden of proof, suffer the detriment).

Le also highlights that the Ninth Circuit provides some guidance

supporting his position. The Ninth Circuit has held that where the categorical

approach applies, discussed supra, the Government must prove that the alien’s

prior offense of conviction constitutes a generic offense that disqualifies him

from relief, thus shifting the burden to the Government. See Almanza-Arenas

v. Holder, 771 F.3d 1184, 1190, 1193 (9th Cir. 2014), en banc reh’g granted, 785

F.3d 366 (May 8, 2015). The Almanza-Arenas court applied the categorical

approach to determine whether the alien’s prior conviction for taking or driving

3 In Martinez, the court used the categorical approach to address the issue of the

alien’s conviction. In applying this approach, courts “compare the elements of the statute

forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime.”

Descamps, 133 S. Ct. at 2281. The categorical approach mandates that the adjudicator look

only to the statute of conviction to determine whether the minimum conduct required under

the statute meets the generic definition of the offense. Courts “look not to the facts of the

particular prior case, but instead to whether the . . . statute defining the crime of conviction

categorically fits within the ‘generic’ federal definition of a corresponding [offense].”

Moncrieffe, 133 S. Ct. at 1684 (internal quotation marks and citation omitted); Cisneros-Perez

v. Gonzales, 465 F.3d 386, 391 (9th Cir. 2006). On the other hand, courts that review an

alien’s conviction using the modified categorical approach employ a different standard.

Restrepo v. Att’y Gen. of U.S., 617 F.3d 787, 791 (3d Cir. 2010) (quoting United States v.

Stinson, 592 F.3d 460, 462 (3d Cir. 2010)); Descamps, 133 S. Ct at 2282, 2285.

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another’s vehicle (joy-riding) “temporarily or permanently” precluded

cancellation of removal as a “generic” crime of moral turpitude. 771 F.3d at

1189–90. The court relied on Moncrieffe, 133 S. Ct. at 1693, to hold that

ambiguity in the record concerning whether a prior conviction is deemed an

aggravated felony is construed against the Government, notwithstanding the

alien’s burden of proof under § 1229a(c)(4)(A)(i). See Almanza-Arenas, 771

F.3d at 1189, 1192–94. The Ninth Circuit has since reheard this case en banc. 4

See Almanza-Arenas v. Lynch, Nos. 09–71415, 10–73715, 2015 WL 9462976

(9th Cir. Dec. 28, 2015).

Moncrieffe, however, does not control. In Moncrieffe, although the Court

noted that a prior conviction for an aggravated felony is grounds both for

removal and denial of discretionary relief from removal, the only issue before

the court was the alien’s removability. See 133 S. Ct. at 1682–83. The Court

stated in a footnote that the approach used “is the same” in both contexts. Id.

at 1685 n.4. However, this commentary was dicta because the issue of who

bears the risk of an inconclusive record when determining an alien’s eligibility

for relief was not before the Court. Id. The case at bar, unlike Moncrieffe,

concerns eligibility for relief from removal and not removal itself. 5

4 The en banc court concluded that despite there being a criminal statute that

penalizes conduct for “permanently or temporarily” depriving an owner of his or her vehicle,

this statute is not divisible. See Almanza-Arenas, Nos. 09–71415, 10–73715, 2015 WL

9462976, at *3–8. Specifically, the court concluded that “permanently or temporarily” are

not two separate offenses and thus are not a divisible statute creating new crimes, but were

merely a means of communicating one offense. Id. at *8. The court remanded the case to the

BIA for further proceedings. Id.

5 While Moncrieffe does not control here, this case does not turn on the examination

of the elements of an identified statute of conviction and therefore does not require us to

apply the categorical or modified categorical approach. We do not reach whether Moncrieffe

affected how courts should apply the modified categorical approach to determine whether a

prior conviction disqualifies a noncitizen from relief from removal when the record of

conviction is ambiguous as to whether the elements of the crime correspond to a disqualifying

offense.

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Similarly, Almanza-Arenas is inapposite. The court in Almanza-Arenas

used the modified categorical approach to determine whether a particular

offense qualified as a crime of moral turpitude rendering the alien ineligible

for cancellation of removal. 771 F.3d at 1192. Le contends, however, that the

categorical approach, and not the modified categorical approach, should be

used to determine his eligibility for relief from removal. Where a “statute

criminalizes different kinds of conduct, some of which would constitute [a

criminal offense] while others would not, the court must apply a modified

categorical approach . . . look[ing] beyond the statutory elements to determine

the particular part of the statute under which the defendant was actually

convicted.” Restrepo v. Att’y Gen. of U.S., 617 F.3d 787, 791 (3d Cir. 2010)

(quoting United States v. Stinson, 592 F.3d 460, 462 (3d Cir. 2010)). This

approach specifically applies to divisible statutes, or statutes that “set out one

or more elements of the offense in the alternative,” effectively creating “several

different . . . crimes.” Descamps, 133 S. Ct at 2282, 2285. In such instances,

courts have “conducted a limited factual inquiry, examining the record of

conviction for the narrow purpose of determining the specific [elements] under

which the defendant was convicted.” Jean–Louis v. Att’y Gen. of U.S., 582 F.3d

462, 466 (3d Cir. 2009) (referencing Singh v. Ashcroft, 383 F.3d 144, 162 (3d

Cir. 2004)).

The modified categorical approach does not apply here. Similar to the

Ninth Circuit’s conclusion in Almanza-Arenas, Le has presented no evidence

showing that he was convicted under a divisible statute that included multiple

offenses, one being possession of cocaine. See Almanza-Arenas, 2015 WL

9462976, at *8. Accordingly, because the ambiguity surrounding Le’s

conviction is not rooted in the existence of a divisible statute, we need not apply

the modified categorical approach or construe any ambiguity in favor of Le.

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Notwithstanding the inconclusive evidence in the instant case, we conclude

that the burden remains on Le to prove eligibility for relief from removal.

B.

Next, having established that the burden is on Le to show that he is

eligible for relief, and treating his offense as an offense for the possession of

cocaine, we now look to whether he has satisfied that burden, reviewing de

novo whether the offense qualifies as an offense relating to a controlled

substance under the INA. See Vasquez-Martinez, 564 F.3d at 717. In order for

an alien to satisfy his burden of proving that grounds for mandatory denial of

an application for relief do not apply, he must

comply with the applicable requirements to submit information or

documentation in support of [his] application for relief . . . as

provided by law or by regulation or in the instructions for the

application form. In evaluating the testimony of the applicant . . .

in support of the application, the immigration judge will determine

whether or not the testimony is credible, is persuasive, and refers

to specific facts sufficient to demonstrate that the applicant has

satisfied [his] burden of proof. In determining whether the

applicant has met such burden, the immigration judge shall weigh

the credible testimony along with other evidence of record. Where

the immigration judge determines that the applicant should

provide evidence which corroborates otherwise credible testimony,

such evidence must be provided unless the applicant demonstrates

that [he] does not have the evidence and cannot reasonably obtain

the evidence.

8 U.S.C. § 1229a(c)(4)(B) (emphasis added). 6

6 The standards for burdens of proof and credibility for adjudicating applications for

discretionary relief were amended by the REAL ID Act of 2005 and apply to applications

made on or after May 11, 2005. REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat.

231 (2005); see also Matter of S-B-, 24 I&N Dec. 42, 42 (BIA 2006). Under the REAL ID Act,

the testimony of the applicant may be sufficient to sustain his burden without corroboration,

but only if the applicant satisfies the trier of fact that his testimony is credible, persuasive,

and refers to specific facts sufficient to demonstrate that the applicant has satisfied his

burden of proof. See INA § 240(c)(4)(B).

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Because the INA does not define the phrase “relating to a controlled

substance” and legislative history does not fully clarify which crimes Congress

intended to characterize as relating to a controlled substance, the

interpretation of this provision is within the purview of the BIA and the

interpretation of its application to state and federal laws remains with the

federal courts. See Esparza-Rodriguez v. Holder, 699 F.3d 821, 823 (5th Cir.

2012).

Le contends that the BIA erred in determining that he failed to establish

eligibility for adjustment of status because he “may have” been convicted of an

offense relating to a controlled substance. Le argues that because he has

repeatedly, consistently and credibly denied ever having possessed, sold,

purchased or used any illegal drugs, he has not “admitted” committing a

criminal offense or the essential elements of an offense related to a controlled

substance. Therefore, if he is inadmissible, it may only be because he has been

actually convicted of such an offense. Le argues that he has proven by a

preponderance of the evidence that the aforementioned grounds for conviction

do not apply. Le also alleges that requiring otherwise would require him to

“prove a negative”: Despite his testimony and despite the ambiguities on the

record, he was not convicted of a controlled substance offense.

The Government counters that there is substantial record evidence to

support the immigration judge’s determination that Le may have sustained a

conviction under Canada’s Narcotic Control Act. Contrary to Le’s contention

that “there is no evidence of a conviction in this case” or that the record is

“ambiguous” as to whether Le sustained a conviction under Canada’s Narcotic

Control Act, the Government highlights that the following is evidence of Le’s

failure to identify the statutory basis of his conviction and failure to show that

there was no nexus between his conviction and a controlled substance: (1) Le

submitted evidence of a pardon for his conviction; (2) DHS submitted evidence

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corroborating the Parole Board’s conclusion that Le did in fact have a drug-

related conviction, as shown in his criminal conviction printout; and (3) DHS

produced evidence showing that United States immigration officials recognized

Le’s conviction as one involving a controlled substance. The BIA determined

that Le failed to meet this burden due to the presence of such overwhelming

evidence to the contrary.

In order for Le to meet his burden, he is required to first identify the

statute under which his criminal offense arises, something Le has failed to do.

Peters v. Ashcroft, 383 F.3d 302, 307 (5th Cir. 2004); Vasquez-Martinez, 564

F.3d at 716–17. Here, Le does not present evidence demonstrating whether he

was convicted under a Canadian federal statute, a provincial law, or even a

Toronto city ordinance. The record contains no judgment, and any

documentation that the immigration judge and the BIA sought from Le in

support of his position that his burden has been met is seemingly unavailable

or cannot be produced. Despite Le’s contention that he could not have been

convicted of such an offense, the record includes a conviction for possession of

cocaine and Le provides no statutory basis for his 1991 conviction that

comprises of something other than a drug offense. This presentation of an

inconclusive record of conviction is insufficient to meet his initial burden of

demonstrating eligibility.

Second, Le must demonstrate that no nexus existed between his statute

of conviction and the controlled substance offense pursuant to 8 U.S.C. §

1182(a)(2)(A)(i)(II). Peters, 383 F.3d at 307. Controlled substances include any

drug or other substance, or immediate precursor, included in Schedule I, II,

III, IV, or V of 21 U.S.C. § 812. We have held that possession of cocaine is an

offense relating to a controlled substance. See Enriquez-Gutierrez, 612 F.3d at

403. Various courts, including this court, have also granted an expansive

reading of what constitutes “relating to” under federal law. Mellouli v. Lynch,

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135 S. Ct. 1980, 1990 (2015); Luu–Le v. INS, 224 F.3d 911, 915–16 (9th Cir.

2000) (“We have construed the ‘relating to’ language broadly in the past.”); see

also Peters, 383 F.3d at 306–07 (Congress[] [has made] consistent effort[s] to

target aliens who are involved in drug-related activities.”); Coronado–Durazo

v. INS, 123 F.3d 1322, 1326 (9th Cir. 1997) (stating that Congress has

expressed great zeal in eliminating illicit drug trafficking and has “clearly

spoken against aliens who abuse the hospitality of the United States” in this

way).

In Mellouli v. Lynch, the Supreme Court recognized that a conviction for

an offense “relating to a controlled substance” must be rooted in there being a

direct link between an alien’s crime of conviction and a particular federally

controlled drug. See 135 S. Ct. at 1990. Where the government does not show

that a conviction relates to a substance listed in the federal controlled

substance schedules, an individual convicted of a state drug paraphernalia

offense is not deportable under the deportability ground for conviction of an

offense “relating to” a controlled substance. Id. It is not enough that the

foreign statute of conviction bears some general relation to federally controlled

drugs. Id. In Peters, for example, we considered identical statutory language

in the removal context and determined that a prior conviction for soliciting the

transportation of at least two pounds of marijuana “on its face constitute[d] a

violation of a law ‘relating to a controlled substance,’” rendering the alien

removable under 8 U.S.C. § 1227(a)(2)(B)(i). Peters, 383 F.3d at 306–07. We

did not review the statute using the categorical approach.

The Third Circuit addressed a line of cases in which the relevant federal

conduct is presented not as a generic, unitary crime requiring analysis under

the categorical approach, but as a conviction “relating to” other crimes or

objects. See Rojas v. Att’y Gen. of the U.S., 728 F.3d 203, 215, 217 (3d Cir. 2013)

(en banc). The inquiry did not focus on a strict element-by-element match

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between the offense of conviction and the federal baseline, but focused on the

nature of the defendant’s conviction and whether it “stand[s] in relation,”

“pertain[s,]” has “bearing of concern,” or “refer[s]” to the object or crime of

comparison. Id. at 217 (citing Desai v. Mukasey, 520 F.3d 762, 764 (7th Cir.

2008)).

Here, evidence supports the BIA’s finding that Le failed to meet his

burden. Le’s evidence of conviction is as follows: Le was pardoned for multiple

“conviction(s)”; the secondary inspection worksheet reflected that Le has a

“conviction for drug possession”; and a RCMP document pertaining to the 1991

offense was entitled “Criminal Convictions Condi[tio]nal and Absolute

Discharges and Relating Information.” Moreover, Le pleaded guilty to

possessing cocaine. While the immigration judge and the BIA found that Le

provided credible testimony, and despite Le’s compliance with other

requirements of the INA, including submitting documentation concerning his

criminal offenses and submitting biometric information for required

background checks, Le is unable to provide documentation that could

completely dispel the evidence presented showing that he was in fact convicted

of possession of a narcotic. Moreover, in a final comment, the immigration

judge suggested to Le that he apply to the RCMP for the release of any

pardoned conviction records in its possession. There is no record evidence that

Le has done so.

In light of Mellouli, Peters, and Rojas, Le’s burden to prove that his

conviction did not relate to a controlled substance could have been met, for

example, by showing either that he was not convicted of the listed offense, or

that his conviction did not involve a drug listed in the federal controlled

substance schedules. Although Mellouli did not address relief from removal,

we construe the term “relating to” in the same way as the Mellouli court. The

aforementioned evidence, without more, shows a failure by Le to establish that

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his offense does not “stand in relation,” “pertain,” have “bearing of concern,” or

“refer” to a controlled substance. Le’s inability to show a conviction for an

offense other than the possession of cocaine, which is a Schedule I controlled

substance, weighs strongly against him. In the absence of anything to the

contrary, Le has not met his burden.

C.

Le contends that the 2008 pardon of his 2001 offense indicates that he

has no conviction for an offense relating to a controlled substance. We conclude

that the BIA did not err in determining that Le’s pardon by the Canadian NPC

has no bearing on his conviction for immigration purposes. As the Government

notes, foreign pardons are generally not recognized under United States

immigration laws. See Danso v. Gonzales, 489 F.3d 709, 717 (5th Cir. 2007).

Other circuits have held that an alien’s conviction remains valid for

immigration purposes even where a foreign law essentially expunges or

pardons the conviction because drug offense pardons are not recognized under

the INA. See Mullen-Cofee v. INS, 976 F.3d 1375, 1379 (11th Cir. 1992)

(holding that a Canadian pardon, in itself, does not wipe out an alien’s foreign

conviction or relieve him from disabilities flowing from that conviction). We

conclude that Le’s pardon does not serve to eradicate his 1991 controlled

substance conviction. In sum, the record supports a finding that the BIA did

not err in determining that Le was inadmissible due to his 1991 conviction.

Accordingly, we reject Le’s argument that his conviction does not render

him ineligible for relief from removal and DENY his petition for review on this

ground. 7

In its brief on appeal, the Government notes that INA § 245(c)(2) bars

7

adjustment of status for an alien who failed continuously to maintain a lawful

immigration status before filing for an adjustment. The Government notes, however,

that the Board did not address whether this renders Le ineligible for adjustment.

Under the circumstances, we decline to rule on this ground.

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II. Whether the BIA abused its discretion when it denied Le’s

motion for reconsideration.

Le also contends that the BIA abused its discretion in denying his motion

for reconsideration. This court reviews the BIA’s denial of a motion to

reconsider under a highly deferential abuse of discretion standard. Lara, 216

F.3d at 496; Osuchukwu, 744 F.2d at 1141–42. Le has failed to overcome this

standard. Pursuant to 8 U.S.C. § 1255(a), an alien is entitled to an adjustment

of status at the Attorney General’s discretion “if (1) the alien makes an

application for such adjustment, (2) the alien is eligible to receive an

immigration visa and is admissible to the United States for permanent

residence, and (3) an immigrant visa is immediately available to [the alien] at

the time his application is filed.” Even if Le’s visa application was approved

and an immigrant visa was immediately available to him, Le has not

established that he is admissible to the United States for permanent residence.

See 8 U.S.C. §§ 1101(b)(1), 1253(a). As the record indicates, neither Le’s

pardon, the letter produced to show the unavailability of additional municipal

court records, nor Le’s testimony were sufficient to show that he does not have

a disqualifying conviction. The BIA’s decision was based squarely on this

evidence presented in the record, which supported its earlier decision. In view

of the evidence, we conclude that the BIA did not abuse its discretion in

denying Le’s motion for reconsideration. Accordingly, Le is not entitled to

review of the BIA’s decision and we DENY Le’s petition for review on this

ground.

CONCLUSION

For the reasons set forth above, we DENY Le’s petition for review.

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