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

15

There 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.