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Flores-Arellano v. Immigration and Naturalization Service

argued submitted pasadena california: July 16, 1993.

JAIME SALVADOR FLORES-ARELLANO, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition to Review a Decision of the Board of Immigration Appeals. I&NS No. A42-448-015.

Before: Harlington Wood, Jr.*fn* , Stephen Reinhardt, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Reinhardt; Special Concurrence by Judge Reinhardt.

Author: Reinhardt

REINHARDT, Circuit Judge:

Jaime Salvador Flores-Arellano challenges the finding that he is deportable on the basis of a misdemeanor state conviction of being under the influence of amphetamine/methamphetamine. Because we conclude that section 241(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(2)(B)(i), plainly reaches under-the-influence convictions for controlled substances other than marijuana, we deny Flores' petition for review.

I

Flores, now 29 years old, entered the United States as a permanent resident on April 16, 1990. Although this is the official date of his legal immigrant entry to the United States, Flores lived in this country for many years prior to 1990. All of Flores' parents and siblings are legal permanent residents, and he has two United States citizen children.

On August 13, 1990, Flores pleaded guilty in San Diego Municipal Court to using and being under the influence of amphetamine and methamphetamine on January 8, 1989,*fn1 in violation of Cal. Health & Safety Code § 11550.*fn2 On January 20, 1991, the Immigration & Naturalization Service (INS) issued an order to show cause charging Flores with deportability on the basis of his under-the-influence conviction.*fn3 The Immigration Judge found Flores deportable on August 15, 1991, and he appealed. The Board of Immigration Appeals (BIA) dismissed his appeal on February 4, 1992. Flores petitions for review.

II

INA section 241(a)(2)(B)(i) provides that:

Any alien who at any time after entry has been convicted of 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 . . . 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. § 1251(a)(2)(B)(i). Flores contends that this provision does not render deportable aliens convicted of use or being under the influence of a controlled substance.

The plain language of section 241(a)(2)(B)(i) reaches under-the-influence convictions. The ordinary meaning of the phrase "any law . . . relating to a controlled substance" encompasses laws proscribing use or being under the influence of a controlled substance. The provision is not ambiguous, nor does its plain language lead to absurd results or internal statutory inconsistencies. See United States v. Turkette, 452 U.S. 576, 580, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981). Flores' arguments that we should abandon this plain meaning in interpreting section 241(a)(2)(B)(i) are unpersuasive.

Flores relies on cases from the federal courts and the BIA interpreting a prior version of the statute as not reaching under-the-influence convictions. See Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Cal. 1964), cited with approval in Matter of Sum, 13 I. & N. Dec. 569 (B.I.A. 1970). The previous version interpreted by these cases limited deportability to aliens convicted of trafficking or possession offenses.*fn4 In the Anti-Drug Abuse Act of 1986, Congress substituted the broader language now in the statute. See Pub. L. No. 99-570, Subtitle M (Narcotics Traffickers Deportation Act), § 1751(b), 100 Stat. 3207, 3207-47 (1986). Flores argues that Congress did not intend the amendment to overrule precedent excluding under-the-influence convictions from the deportability statute. However, the legislative history surrounding the 1986 amendment of the deportability statute is inconclusive, lacking the clear indication of a contrary intention necessary to overcome the plain meaning of the post-amendment statute. See INS v. Cardoza-Fonseca, 480 U.S. 421 n.12, 432, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987) (when plain language appears to settle question, only clearly expressed contrary intention in legislative history may overcome "strong presumption" that Congress expresses its intent through language it chooses).

Looking to the structure of the statute, Flores argues that the inclusion of "drug abusers" as an independent deportable class under section 241(a)(2)(B)(ii) demonstrates that Congress did not intend aliens convicted of drug "use" crimes to be deportable under section 241(a)(2)(B)(i). Flores' contention rests on the Conclusion that if drug "use" convictions render an alien deportable, then the provision regarding drug "abuse," involving more sustained use of controlled substances, would be superfluous. Flores' argument overlooks the conviction requirement in subsection (i), which renders the grounds for deportability specified in subsections (i) and (ii) logically distinguishable. Subsection (ii) reaches alien drug ...


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