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