Osman Jalloh v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 9, 2023
• Docket: 20-2117
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2117

OSMAN JALLOH, a/k/a Osman Jallon

Petitioner

v.

MERRICK B. GARLAND, Attorney General

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: December 7, 2022 Decided: February 9, 2023

Before WILKINSON and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Petition denied by unpublished opinion. Judge Wilkinson wrote the opinion, in which Senior Judge Floyd joined. Judge Rushing wrote a dissenting opinion.

ARGUED: Zindzi Cloy Baugh Corbett, LAW OFFICES OF JAY S. MARKS, LLC, Silver Spring, Maryland, for Petitioner. Stephanie Leigh Groff, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jay S. Marks, LAW OFFICES OF JAY S. MARKS, LLC, Silver Spring, Maryland, for Petitioner. Brian M. Boynton, Acting Assistant Attorney General, Shelley R. Goad, Assistant Director, Jennifer P. Levings, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 20-2117 Doc: 58 Filed: 02/09/2023 Pg: 2 of 11

WILKINSON, Circuit Judge:

Osman Jalloh petitions for review of an order of the Board of Immigration Appeals

denying his motion to reopen his removal proceedings. Jalloh conceded that he was

removable in 2009 because he had been convicted of four drug offenses. He moved to

reopen his proceedings in 2019 based on changed circumstances—chiefly that three of his

four convictions had been vacated and his only remaining conviction was for possession

of drug paraphernalia. Jalloh argued that this conviction fell within the statutory exception

to removability for convictions involving simple possession of thirty grams or less of

marijuana. See 8 U.S.C. § 1227(a)(2)(B)(i). But the Board denied relief because Jalloh’s

conviction involved possession of paraphernalia, not marijuana. We conclude that Jalloh

failed to establish prima facie eligibility for relief because he presented no evidence that

his paraphernalia conviction involved the simple possession of thirty grams or less of

marijuana. We therefore deny his petition for review.

I.

Osman Jalloh, a native of Sierra Leone and lawful permanent resident of the United

States, was ordered removed from the United States after he was convicted of four

Maryland drug-related offenses between 2000 and 2009: (1) an April 17, 2000 conviction

for possession of drug paraphernalia; (2) a December 13, 2001 conviction for possession

of marijuana; (3) a May 5, 2005 conviction for possession of marijuana; and (4) a July 6,

2009 conviction for possession of drug paraphernalia.

In August 2009, the Department of Homeland Security served Jalloh with a notice

to appear (“NTA”) charging him with removability under 8 U.S.C. § 1227(a)(2)(B)(i). This

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provision states: “Any alien who at any time after admission has been convicted of a

violation of . . . any law or regulation of a State, the United States, or a foreign country

relating to a controlled substance . . . other than a single offense involving possession for

one’s own use of 30 grams or less of marijuana, is deportable.” 8 U.S.C. § 1227(a)(2)(B)(i).

Before the Immigration Judge, Jalloh admitted the charges in his NTA, conceded

his removability, and requested relief in the form of asylum and protection under the

Convention Against Torture (“CAT”). Based on Jalloh’s concessions, the IJ found that his

removability was established by clear and convincing evidence and proceeded to deny his

applications for asylum and CAT protection. Jalloh appealed the IJ’s decision to the Board

of Immigration Appeals, which affirmed the IJ’s denial of relief while noting that Jalloh

had not contested his removability. This court dismissed Jalloh’s petition for review of the

BIA’s decision in December 2010.

About nine years later, in November 2019, Jalloh filed a motion with the BIA to

reopen his case due to changed circumstances. Jalloh sought equitable tolling of the filing

deadline and asked the Board to reopen his case sua sponte based on extraordinary

circumstances—namely, (1) that three of his four drug-related convictions had been

vacated, materially affecting his eligibility for relief; (2) his serious medical condition; and

(3) the impracticability of repatriating him to Sierra Leone. Jalloh attached supporting

documents purporting to show that his December 2001 marijuana-possession conviction,

May 2005 marijuana-possession conviction, and July 2009 paraphernalia-possession

conviction had been vacated by Maryland state courts. His only unvacated conviction was

his April 2000 conviction for possession of drug paraphernalia. Jalloh argued that the

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Board should reopen his proceedings so that he could demonstrate that he was not subject

to removal under 8 U.S.C. § 1227(a)(2)(B)(i). According to Jalloh, his paraphernalia

conviction fell under § 1227(a)(2)(B)(i)’s exception for convictions involving possession

for personal use of 30 grams or less of marijuana, as that provision had been interpreted by

the BIA. A.R. 29–30 (citing In re Davey, 26 I&N Dec. 37 (BIA 2012)).

The BIA denied Jalloh’s motion on September 30, 2020. Assuming without

deciding that Jalloh merited equitable tolling, the Board held that he had not established

“prima facie eligibil[ity] for the relief sought.” A.R. 4 (citing, inter alia, INS v. Abudu, 485

U.S. 94, 104–05 (1988)). The Board first noted that Jalloh did “not dispute that he conceded

he was removable as charged” or contest the Board’s “prior determination that he waived

the issue of removability.” Id. Then it concluded that “even if [Jalloh] was in possession of

less than 30 grams of marijuana when he was arrested for the 2000 offense, he is not eligible

for the exception under [§ 1227(a)(2)(B)(i)] because his offense involves possessing drug

paraphernalia rather than possessing marijuana.” Id. Finally, considering the totality of the

circumstances—including Jalloh’s long residence in the United States and ongoing medical

treatment—the Board declined to exercise its discretion to grant the “extraordinary remedy

of reopening his removal proceedings sua sponte.” Id.

Jalloh timely petitioned this court for review on the sole issue of whether the BIA

“committed error as a matter of law” in ruling that he was ineligible for 8 U.S.C.

§ 1227(a)(2)(B)(i)’s “30 grams of marijuana or less” exception because his conviction

involved possession of paraphernalia. Jalloh argues that the Board’s decision contradicted

its own precedents, which hold that a paraphernalia conviction falls within the exception if

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the “paraphernalia in question was merely an adjunct to the offender’s simple possession

or ingestion of 30 grams or less of marijuana.” Davey, 26 I&N Dec. at 40–41; see In re

Martinez-Espinoza, 25 I&N Dec. 118, 123 (BIA 2009). He asks us to reverse and remand

with instructions for the Board to grant his motion to reopen and allow him to demonstrate

that his conviction qualifies for the 30-grams-or-less exception.

II.

“We review the BIA’s denial of a motion to reopen for abuse of discretion.”

Wanrong Lin v. Holder, 771 F.3d 177, 182 (4th Cir. 2014). “The BIA’s decision is

reviewed with extreme deference, given that motions to reopen are disfavored because

every delay works to the advantage of the deportable alien who wishes merely to remain

in the United States.” Id. (quotation marks omitted). Moreover, “[h]armless-error analysis

applies in immigration cases.” Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004);

see also Gonahasa v. U.S. INS, 181 F.3d 538, 542 n.2 (4th Cir. 1999).

As we have previously recognized, “the Supreme Court has held that the BIA may

deny a motion to reopen deportation proceedings for any of three independent reasons: (1)

the alien has not established a prima facie case for the underlying substantive relief sought;

(2) the alien has not introduced previously unavailable, material evidence; and (3) where

relief is discretionary, the alien would not be entitled to the discretionary grant of relief.”

Onyeme v. U.S. INS, 146 F.3d 227, 234 (4th Cir. 1998) (citing Abudu, 485 U.S. at 104–05).

An alien seeking to reopen proceedings based on changed conditions “carries a heavy

burden; he or she must show that the new evidence offered would likely change the result

in the case.” Wanrong Lin, 771 F.3d at 183 (quotation marks omitted).

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Under 8 U.S.C. § 1227(a)(2)(B)(i), Jalloh’s paraphernalia conviction renders him

removable unless it falls within the statute’s exception for “a single offense involving

possession for one’s own use of 30 grams or less of marijuana.” We assume without

deciding that the BIA’s interpretation of this provision in Davey was correct: A conviction

for possession of drug paraphernalia may fall within the exception if “the paraphernalia in

question was merely an adjunct to the offender’s simple possession or ingestion of 30

grams or less of marijuana.” Davey, 26 I&N Dec. at 40–41. But the “possession of drug

paraphernalia would not ‘involve’ simple marijuana possession . . . if the paraphernalia in

question was associated with the manufacture, smuggling, or distribution of marijuana or

with the possession of a drug other than marijuana.” Id. at 41. While an “alien who

possessed a marijuana pipe or rolling papers may be covered by the exception,” one who

“possessed a drug scale or hypodermic syringe would not.” Id.

Accordingly, we note that insofar as the Board’s decision in Jalloh’s case can be

interpreted as resting on the proposition that paraphernalia convictions categorically do not

qualify for the exception, see A.R. 4, that unexplained departure from Davey was error, see

Oral Arg. at 42:35 (government attorney conceding that the Board erred on this point).

The error, however, was harmless. The Board properly denied Jalloh’s motion to

reopen because he did not establish a prima facie case that he was not removable on the

basis of his 2000 paraphernalia conviction. Far from meeting his “heavy burden” to show

that the “new evidence offered would likely change the result in [his] case,” Wanrong Lin,

771 F.3d at 183 (quotation marks omitted), Jalloh presented no evidence that his drug

paraphernalia “was merely an adjunct to [his] simple possession or ingestion of 30 grams

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or less of marijuana,” Davey, 26 I&N Dec. at 40–41. In other words, there is no evidence

in the record that Jalloh’s April 2000 paraphernalia conviction was “closely related” to his

simple possession of 30 grams or less of marijuana, as would qualify him for

§ 1227(a)(2)(B)(i)’s exception to removability. Id. at 40.

The evidence that Jalloh presented to the BIA regarding this paraphernalia

conviction only showed that when he was charged with this offense, he was also charged

with theft (greater than $300 in value), unlawful taking of a motor vehicle, making a false

statement to a peace officer, and possession of marijuana (with no amount listed). See A.R.

29–30, 109–110. At oral argument, Jalloh’s attorney also pointed to Jalloh’s 2010

testimony before the Immigration Judge. See Oral Arg. at 21:40. But even if we were to

credit this self-serving testimony, all Jalloh said was that his paraphernalia convictions

were “related to marijuana.” A.R. 435. And Jalloh needed to present evidence that his

paraphernalia conviction was not just related to marijuana, but “merely an adjunct” to his

“simple possession . . . of 30 grams or less of marijuana.” Davey, 26 I&N Dec. at 40–41

(emphasis added).

Neither Jalloh’s testimony nor the fact that he was also charged with possession of

an unspecified amount of marijuana establishes a prima facie case that his paraphernalia

conviction was merely an adjunct to his simple possession of 30 grams or less of marijuana.

To this day, it remains unclear what type of paraphernalia he possessed or the amount of

drug it was related to—whether he possessed, for example, a “marijuana pipe or rolling

papers” as would be consistent with simple possession of a small quantity of marijuana or,

on the other hand, “a drug scale.” Id. at 41.

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III.

The Supreme Court has cautioned us not to let these immigration proceedings drag

on and on. See, e.g., Wanrong Lin, 771 F.3d at 182. Accordingly, we also note that the

Board is due “extreme deference” with regard to discretionary decisions on motions to

reopen. Id. (quotation marks omitted). Jalloh failed to meet his heavy burden in moving to

reopen because he presented no evidence showing that his paraphernalia conviction was

closely related to the simple possession of 30 grams or less of marijuana. He failed to

establish a prima facie case that he was eligible for relief based on 8 U.S.C.

§ 1227(a)(2)(B)(i)’s exception to removability. See Onyeme, 146 F.3d at 234. The BIA

therefore did not abuse its broad discretion when it declined to reopen Jalloh’s removal

proceedings. Jalloh’s petition for review is

DENIED.

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RUSHING, Circuit Judge, dissenting:

The majority denies Jalloh’s petition on an alternative ground the BIA did not

consider. I would stick to reviewing the reason the BIA articulated for its decision and,

finding that basis legally erroneous, remand for the agency to consider the fact question

the majority resolves in the first instance.

Based on his four drug-related convictions, the BIA ordered Jalloh removed under

8 U.S.C. § 1227(a)(2)(B)(i). Later, three of Jalloh’s convictions were tossed out, leaving

only one conviction for drug paraphernalia. So Jalloh filed a motion to reopen, asking the

BIA to reconsider its removal order. He argued that his remaining conviction for drug

paraphernalia from April 2000 fell within Section 1227(a)(2)(B)(i)’s exception for “a

single offense involving possession for one’s own use of 30 grams or less of marijuana.”

The BIA declined to reopen Jalloh’s case. It reasoned that “even if [Jalloh] was in

possession of less than 30 grams of marijuana when he was arrested for the 2000 offense,

he is not eligible for the [statutory] exception . . . because his offense involves possessing

drug paraphernalia rather than possessing marijuana.” A.R. 4.

As the Attorney General admits, that holding was an unexplained departure from

BIA precedent, which holds that possession of drug paraphernalia may fall within Section

1227(a)(2)(B)(i)’s exception if it is “an adjunct to . . . simple possession or ingestion of 30

grams or less of marijuana.” See Matter of Davey, 26 I. & N. Dec. 37, 40–41 (B.I.A. 2012).

The majority agrees with the Attorney General’s concession of legal error. Supra, at 6.

But the majority reasons that the BIA’s error was harmless because Jalloh failed to prove

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that his drug paraphernalia conviction was related to simple possession of marijuana for

personal use. Supra, at 6–7.

The majority is certainly correct that harmless-error analysis applies in immigration

cases. Even in the face of error by the agency, we may permit a BIA decision to stand if

the legal and factual infirmities “clearly had no bearing on the procedure used or the

substance of the decision reached.” Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir.

2004) (internal quotation marks omitted); see also Tassi v. Holder, 660 F.3d 710, 725 (4th

Cir. 2011).

But harmless-error review is not an invitation for us to supply a reasoned basis for

the BIA’s decision. “‘[A]n agency’s action must be upheld, if at all, on the basis articulated

by the agency itself.’” Gonzalez v. Garland, 16 F.4th 131, 144 (4th Cir. 2021) (quoting

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983)); see

INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam) (citing SEC v. Chenery Corp.,

318 U.S. 80, 88 (1943)). Thus, “our review is limited to the reasoning the BIA actually

provided,” without “substituting what we consider to be a more adequate or proper basis.”

Cordova v. Holder, 759 F.3d 332, 340 (4th Cir. 2014) (internal quotation marks and

alterations omitted). When the BIA’s sole ground of decision is faulty and it leaves the

parties’ alternative arguments unaddressed, “the proper course, except in rare

circumstances, is to remand to the agency” for it to resolve those alternative arguments in

the first instance. Ventura, 537 U.S. at 16 (internal quotation marks omitted).

The BIA’s decision here rested on its erroneous conclusion that drug paraphernalia

convictions are categorically excluded from the statutory exception. That legal error

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unquestionably bore on the “substance of the decision reached.” Tassi, 660 F.3d at 725

(internal quotation marks omitted). The BIA did not address the alternative rationale on

which the Attorney General now relies. Jalloh has presented evidence to support the

contention that his drug paraphernalia conviction was related to marijuana use. For

example, he was simultaneously charged with possessing marijuana. He testified that his

paraphernalia was for using marijuana, and none of his prior convictions related to any

drugs other than marijuana. The BIA did not weigh Jalloh’s evidence to determine whether

his conviction was “an adjunct” to possession of marijuana for personal use. Matter of

Davey, 26 I. & N. Dec. at 40. I would grant the petition and remand for the BIA to weigh

the evidence and decide this factual question in the first instance.