Fifth Circuit Finds that Despite Ambiguity in Record of Conviction, Burden Rests on Alien to Prove Conviction is not Related to a Controlled Substance

By Alex Sheppard

Last month the Fifth Circuit Court of Appeals released a decision on (1) whether the alien or the government bears the burden of proof in determining whether grounds for mandatory denial of an alien’s application for relief do not apply when the alien has demonstrated ambiguity in the record of conviction; (2) whether that burden was met; and (3) the effect of a Canadian pardon for the conviction in question. Le v. Lynch, No. 13-60664, slip op. (5th Cir. Jan. 6, 2016). The Fifth Circuit ruled that despite ambiguity in the record, the alien bears the burden of proof; that burden was not met; and the Canadian pardon carried no weight for U.S. immigration purposes. Id.

Factual Background

Anh Le arrived in Canada as a refugee from Vietnam in 1978. Id. at 2. In 1991, Le was searched and arrested after driving a vehicle with a friend who possessed cocaine. Id. Available arrest records suggest that Le was convicted with the crime of cocaine possession. Id. Le alleges that he has never used or possessed any illegal drugs, but at the time of arrest did not speak English well and did not understand the charges against him. Id. For the conviction, Le was fined $700, but served no jail time. Id.

In 2002, Le received a 30-day visitor’s visa to the United States. Id. He was then granted a nonimmigrant waiver of inadmissibility from the U.S. for one year through 2003. Id. In 2005, Le’s wife became a naturalized U.S. citizen, and in 2008 she filed an immediate relative visa petition to adjust Le’s status to that of Lawful Permanent Resident (LPR). Id. Le then filed an application for adjustment of status to that of an LPR. Id.

The Immigration Hearing

On his application for adjustment of status, Le failed to indicate his 1991 conviction. Id. The Department of Homeland Security (DHS) discovered documents surrounding the conviction, and asserted that the conviction was for a controlled substance offence and thus made Le ineligible for LPR status under INA § 212(a)(2)(A)(i)(II). Id. at 3. While the actual record of conviction could not be obtained, DHS filed four documents in support of the position that the conviction was for a controlled substance offense:

a government inspection worksheet noting that Le was convicted of and received a $700 fine for a drug possession offense on January 11, 1991; a National Automated Immigration Lookout System Inquiry noting that Le was refused entry into Toronto and had at least one conviction for possession; a Canadian fingerprint report showing Le’s photograph and fingerprint with a summary of a possession of narcotics charge; and documentation from an Immigration and Naturalization Service inspector showing that Le was inadmissible when he previously applied for nonimmigrant status.

Id.

Le countered the government’s evidence by testifying that the court translator during his 1991 charge explained to him that the judge was charging Le as the owner of the vehicle in which his friend was found to have possessed cocaine, and that Le himself was never charged with possession of narcotics or possession of cocaine. Id. at 4. Le also presented documentation that he had received a pardon from the Canadian government for the 1991 conviction, described as a “Breach of the Narcotic Control Act,” and for a subsequent offense. Id. Along with this documentation, Le presented a letter from the Canadian National Pardon Centre which stated that a pardon “‘no longer reflect[s] adversely on that person’s character, and removes any disqualification to which the individual is subjected…’” Id. However, the letter also informed that a pardon “may not be recognized by foreign governments” and “‘will not guarantee entry or visa privileges to another country.’” Id.

The IJ found that, despite Le’s credible testimony surrounding his 1991 charge and conviction, Le did not satisfy his burden of proof to establish that he was not convicted of an offense relating to a controlled substance under 8 C.F.R. § 1240.8(d). Id. The IJ also found that “the Canadian pardon did not nullify the conviction for United States immigration purposes.” Id. at 5.

The Fifth Circuit Court of Appeals

Le appealed to the Board of Immigration Appeals (BIA), and the BIA affirmed the IJ’s decision. Id. at 5, 6. He then filed a timely petition to the Fifth Circuit Court of Appeals. Id. at 6. Before the Circuit Court were three sub-issues raised on appeal:

(1) whether the alien or the Government bears the burden of proof in determining whether grounds for mandatory denial of Le’s application for relief do not apply; (2) whether the evidence shows that this burden has been met; and (3) what effect, if any, Le’s pardon has on his admissibility.

Id. at 8.

Sub-Issue (1) – Who has the Burden of Proof

1. Removability and Relief from Removability

In addressing the first sub-issue, the court began by noting the difference in burden between proving removability versus proving relief from removability. Id. at 9. Under INA § 240(c)(3)(A), the government bears the burden of proving that an alien should be removed, which the government can satisfy by demonstrating that grounds of mandatory denial of the application may exist. Grounds of mandatory denial include, under INA § 212(a)(2)(A)(i)(II), a conviction for “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance.” The government did this successfully in Le’s case by presenting several documents that suggested Le was convicted for possessing cocaine, discussed supra. The burden of proof then shifts to the alien under 8 C.F.R. § 1240.8(d), which reads, “If the evidence indicates that one or more of the grounds 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.”

Le argues that because the actual record of conviction likely no longer exists, and because he has demonstrated that ambiguity exists as to the nature of the conviction, that the burden shifts back to the government to overcome the ambiguity. Le, No. 13-60664, slip op. at 8. Le relied on, inter alia, the Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct. 1678, (2013). Id. The Court in Moncrieffe ruled that “ambiguity in criminal statutes referenced by the INA must be construed in the noncitizen’s favor.” Moncrieffe, 133 S. Ct. at 1693. The court in Moncrieffe was discussing removability, and not relief from removability, as is at issue in Le’s case. See Id. However, the Moncrieffe decision included a footnote which said that when approaching ambiguity for either removability or relief from removability purposes, “Our analysis is the same in both contexts.” Id. at 1685 n.4.

The Le Court rejected this argument. Le, No. 13-60664, slip op. at 12. The Court found that Moncrieffe “does not control,” because the only issue before the Moncrieffe Court was removability, and thus the footnote addressing relief from removability was strictly dicta, which the Le Court found unpersuasive, and obviously disagrees with. Id.

1. Initial Burden of Production of Evidence

Le also argues that determining whether his conviction is of a particular type of generic offense (i.e., “relating to a controlled substance”) is a legal question, not a factual question, and thus the burden of resolving the legal question should fall on the government. Id. at 8. In support of his argument, Le relied on, inter alia, Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008), and Almanza–Arenas v. Holder, 771 F.3d 1184 (9th Cir. 2014). Le, No. 13-60664, slip op. at 10, 11.

The Court rejected this argument, making a distinction about the initial burden of production of evidence. Id. at 10. In both Martinez and Almanza–Arenas, the statutes of conviction were known, and the ambiguities surrounded whether those convictions constituted certain generic offenses. Id. at 11, 13 (discussingMartinez 551 F.3d at 122; Almanza–Arenas, 771 F.3d at 1192). The ambiguity in Le’s case, on the other hand, surrounds the actual crime of conviction and what that crime was. The Court cited several cases which assign this initial burden of production of evidence, that of the actual record of conviction, on the alien, despite any ambiguities. Id. at 10. Among those, the Court cited Vasquez–Martinez v. Holder, 564 F.3d 712, 716 (5th Cir. 2009), holding “[T]he alien, not the Government, bears ‘the initial burden of production of evidence’ that he is eligible for discretionary relief,” as well as Salem v. Holder, 647 F.3d 111, 116–20 (4th Cir. 2011), concluding, “where the evidence of conviction is inconclusive, the burden remains on the alien to prove eligibility for relief from removal.” Id.

Thus, the Court determined that the burden of proof remained on Le, and that the crime of conviction was, unless proved otherwise, for possession of cocaine. Id. at 13.

Sub-Issue (2) – Has the Burden Been Satisfied

Having determined that the burden of proof remained on Le, and treating his 1991 conviction as a conviction for possession of cocaine, the Court looked to whether Le met his burden of proving eligibility for relief from removal. Id. at 13, 14.

The Court suggests that in order for Le to meet his burden of proof, he must first identify under which statute he was convicted. Id. at 16. Le was unable to achieve this. As the Court articulates,

Here, Le does not present evidence demonstrating whether he was convicted under a Canadian federal statute, a provincial law, or even a Toronto city ordinance. The record contains no judgment, and any documentation that the immigration judge and the BIA sought from Le in support of his position that his burden has been met is seemingly unavailable or cannot be produced.

Id. The Court does not suggest, however, what an alien should do when documentation in support of eligibility in fact cannot be produced.

Second, the Court suggests that Le must demonstrate that there is no nexus between his crime of conviction and the generic crime making him ineligible for adjustment of status – a crime relating to a controlled substance. Id. Possession of cocaine has long been recognized as a crime relating to a controlled substance. Id. (citingEnriquez-Gutierrez v. Holder, 612 F.3d 400, 403 (5th Cir. 2010)). Further, the Court notes that the crime of conviction need not be on a list of enumerated crimes to qualify as the particular generic crime of “relating to a controlled substance,” but the standard is “whether it ‘stand[s] in relation,’ ‘pertain[s,]’ has ‘bearing of concern,’ or ‘refer[s]’ to the object or crime of comparison.” Id. at 17 (quoting Rojas v. Att’y Gen. of the U.S., 728 F.3d 203, 217 (3d Cir. 2013) (en banc)).

The Court found that Le could have met his burden “by showing either that he was not convicted of the listed offense, or that his conviction did not involve a drug listed in the federal controlled substance schedules.” Id. at 18. The Court went on to say, “Le’s inability to show a conviction for an offense other than the possession of cocaine, which is a Schedule I controlled substance, weighs strongly against him. In the absence of anything to the contrary, Le has not met his burden.” Id.

Sub-Issue (3) – Le’s Canadian Pardon

The Circuit Court ruled in favor of the government’s position that Le’s Canadian pardon carries no weight for U.S. immigration purposes, saying “foreign pardons are generally not recognized under United States immigration laws.” Id. at 19.

Alex Sheppard is a third-year law student at the University of Denver Sturm College of Law. His bio can be found here: https://www.linkedin.com/in/alexandersheppard