IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60664

ANH LE, 

 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL, 

 Respondent

Petitions for Review of an Order of the

Board of Immigration Appeals

Before STEWART, Chief Judge, and CLEMENT, and ELROD, Circuit Judges.

CARL E. STEWART, Chief Judge:

Petitioner Anh Le (“Le”) appeals the Board of Immigration Appeals’

(“BIA” or the “Board”) decision to uphold an immigration judge’s finding that 

Le was statutorily ineligible for adjustment of status under Section 

212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (“INA”). The Board 

determined that Le failed to demonstrate that he was admissible to the United 

States as a lawful permanent resident (“LPR”). Le also appeals the BIA’s 

denial of his motion for reconsideration. For the following reasons, the petition 

for review is DENIED.

United States Court of Appeals

Fifth Circuit

FILED

January 6, 2016

Lyle W. Cayce

Clerk

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FACTUAL BACKGROUND

Le escaped Vietnam and arrived in Canada as a refugee in 1978. After 

his arrival, he was convicted of two separate criminal offenses. The issues on 

appeal stem from Le’s first arrest and conviction in 1991.1 Le was arrested 

after picking up a friend who possessed cocaine while Le was driving his 

vehicle. Le was searched for drugs and taken to the police station to be 

questioned but no drugs were found on his person. As a result of this arrest, 

Le was fined $700 but served no jail time. Records from his arrest showed that 

Le was convicted of possession of cocaine, a controlled substance offense, 

although Le asserts that he has never used or possessed any illegal drugs. At 

the time, Le had been living in Canada for approximately four years and was 

studying English. He contends that he had not fully mastered the English 

language and that he was not told, nor did he understand, the nature of the 

criminal charge against him. 

In 2002, Le was admitted to the United States on a thirty-day visitor’s 

visa. In May of that same year, he was granted a nonimmigrant waiver of 

inadmissibility for one year through 2003, allowing him to remain in the 

United States. His wife, Thu Van Nguyen, became a naturalized United States 

citizen in 2005 and filed an “immediate relative” visa petition on Le’s behalf in 

2008. Le applied for adjustment of his status to lawful permanent resident in 

2010 under 8 U.S.C. § 1255(a), based on Nguyen’s approved immediate relative 

visa petition. On his application, Le indicated that he was previously 

“arrested, cited, charged, indicted, fined, or imprisoned for breaking a[] law or 

ordinance” and that he was not pardoned for that offense. He attached a 

description of his criminal history that only listed his 1998 offense.2 

 

1 In 1998, Le was arrested a second time after being approached by a police officer who 

found him sitting in an idle car with the motor running while under the influence of alcohol. 

2 See supra note 1.

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When reviewing his adjustment of status application, the Department of 

Homeland Security (“DHS”) raised the question of whether Le was ineligible 

for LPR status due to his 1991 controlled substance offense, pursuant to 8 

U.S.C. § 1182(a)(2)(A)(i)(II). The Government challenged Le’s admissibility 

and filed four documents in support of its position: 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.

Le’s application was denied in April 2008. The Government commenced 

removability proceedings in 2009 because Le had remained in the United 

States beyond the 2003 expiration date of his nonimmigrant visitor visa. A 

Notice to Appear was issued charging Le with remaining longer than 

authorized. 

PROCEDURAL HISTORY

I. Immigration Judges Law and Walton

At Le’s initial hearing in 2009 before Immigration Judge Phillip Law (“IJ 

Law”), Le indicated that he would be seeking adjustment of status to lawful 

permanent resident. DHS again raised the question of whether Le was 

inadmissible because of his 1991 offense. At a second hearing in 2010, Le 

testified about his 1991 arrest in Toronto and stated again that he had no drugs 

on his person at the time of his arrest and that he never used, purchased, or 

sold illegal drugs. Although Le was represented by an attorney, he did not 

have a translator when meeting with counsel prior to his court appearance. Le 

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was only able to use a translator while in court. He stated that the translator 

explained to him that his classmate was buying and using cocaine, and that 

the judge confirmed that because Le was the owner of the vehicle he was 

charged as a result of picking up his classmate. Nevertheless, Le testified that 

he was not charged with possession of narcotics or possession of cocaine. 

Following Le’s testimony before IJ Law, he filed documentation from the 

Canadian government indicating that he had received a pardon for his 1991 

“Breach of the Narcotic Control Act” conviction and for his subsequent 1998 

offense. Le also submitted a letter from the Canadian National Pardon Centre 

(“NPC”), which explained that while a pardon “no longer reflect[s] adversely 

on that person’s character, and removes any disqualification to which the 

individual is subjected,” a pardon “does not erase the fact that an individual 

was convicted of an offence(s) and has a criminal record.”

The letter informed Le that a pardon “may not be recognized by foreign 

governments” and “will not guarantee entry or visa privileges to another 

country.” Le submitted another letter which showed that the NPC cleared his 

criminal record from his public file. The letter advised Le that the NPC would 

destroy the last open record of his criminal charges from its system if Le did 

not contact the NPC within two months. There is no record of Le contacting

the NPC during that two-month period.

In 2011, Le’s case was reassigned to immigration judge Richard Walton

(“IJ Walton”). While testifying before IJ Walton, Le reiterated previous 

testimony concerning the 1991 conviction and IJ Walton found that Le’s

testimony was generally consistent with his testimony before IJ Law. IJ 

Walton determined, however, that Le was statutorily ineligible for adjustment 

of status because he did not meet “his burden of proof to show he was not 

convicted of an offense relating to a controlled substance” under 8 C.F.R. § 

1240.8(d). IJ Walton found that Le could have, for example, “demonstrated 

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that the Canadian Narcotic Control Act encompasses offenses relating to drugs 

not defined in our Controlled Substances Act (“CSA”)” or that “the information 

contained in each of the [Government] exhibits is somehow incorrect or lacking 

in probative value.” IJ Walton emphasized that the documentary evidence 

submitted by both Le and the Government “consistently point[ed] to the 

existence of a conviction for possession of a controlled substance, perhaps 

cocaine.” He found that Le’s testimony that he “did not know why he was 

arrested in 1991, and whether it was for a drug offense, [was] insufficient to 

overcome the documentary evidence.” He noted that Le’s testimony, “while 

credible, was taken over twenty years after an incident where he admitted that 

he did not fully understand the charges brought against him because of a 

language barrier.” Finally, IJ Walton determined that the Canadian pardon 

did not nullify the conviction for United States immigration purposes. Le was 

ordered removed to Canada, and he appealed to the BIA. 

II. The BIA’s Review

Reviewing the decision de novo, the BIA affirmed IJ Walton’s denial of

the adjustment of Le’s status. The Board stated that it found ample evidence 

in the record to support IJ Walton’s finding of a potential disqualifying drug 

conviction, including Le’s criminal record print-out reflecting a fine and jail 

time on a charge of possession of narcotics and Le’s own submission of a pardon 

for his conviction. The BIA noted that, under the REAL ID Act, 8 U.S.C. §

1229a(c)(4)(A); 8 C.F.R. § 1240.8(d), Le bore the burden of resolving any 

ambiguities in the record and that it was his burden to show that the drug 

involved does not correspond to a controlled substance that would render Le 

inadmissible. The Board also agreed with IJ Walton that Le’s testimony did 

not satisfy his burden of proof, particularly in light of his admission that he 

lacked a clear understanding of the charge.

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Finally, the BIA determined that Le was not relieved of his burden of 

proof by asserting that the relevant records concerning his 1991 conviction no 

longer existed. Although the Board acknowledged Le’s evidence that court 

records of his convictions were no longer available and may have been 

destroyed, the BIA noted that “while pardoned conviction records are removed 

from public access and may be purged from the archives of local jurisdictions, 

sealed records may be retained at the federal level.” The BIA advised Le of his 

option to “apply to the Royal Canadian Mounted Police [(“RCMP”)] for the 

release of any pardoned conviction records in its possession” and provided the 

link to a website with the RCMP’s instructions for obtaining pardoned 

conviction records.

Le appealed the BIA’s decision, which the BIA dismissed. Le filed a 

motion for reconsideration. The BIA also denied Le’s motion. Le timely 

petitioned this court for review of the BIA’s denial. Le now raises two issues:

(1) whether the BIA properly found Le ineligible for adjustment of Le’s

immigration status where there is evidence that Le may have been convicted 

of a drug-related offense in Canada; and (2) whether the BIA abused its 

discretion when it denied Le’s motion for reconsideration. 

STANDARD OF REVIEW

In a petition for review of a BIA decision, we review legal and 

constitutional issues de novo. See Sealed Petitioner v. Sealed Respondent, 567 

F. App’x 231, 234 (5th Cir. 2014) (citing Enriquez-Gutierrez v. Holder, 612 F.3d 

400, 406 (5th Cir. 2010)). Although “we generally only have authority to review 

the BIA’s decision, . . . we may also review the [immigration judge’s] decision 

when it has some impact on the BIA’s decision, as when the BIA has adopted 

all or part of the [judge’s] reasoning.” Id., 567 F. App’x at 234 (citing EnriquezGutierrez, 612 F.3d at 407); see Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 

1997); see also Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012). 

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This court applies the substantial evidence standard to the BIA’s findings of 

fact. See Soriano v. Gonzales, 484 F.3d 318, 320 (5th Cir. 2007). The

substantial evidence standard requires “that the [BIA’s] conclusion be based 

upon the evidence presented and that it be substantially reasonable.”

Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996) (citation omitted). 

Under this standard, this court will affirm the BIA unless the “evidence 

compels a contrary conclusion” and is so compelling that no reasonable 

factfinder could conclude against it. Id. 

We review the BIA’s denial of a motion to reconsider under a highly 

deferential abuse of discretion standard. See Lara v. Trominski, 216 F.3d 487, 

496 (5th Cir. 2000); Osuchukwu v. INS, 744 F.2d 1136, 1141–42 (5th Cir. 1984). 

The court will not find an abuse of discretion unless the decision is “capricious, 

racially invidious, utterly without foundation in the evidence, or otherwise so 

aberrational that it is arbitrary rather than the result of any perceptible 

rational approach.” Osuchukwu, 744 F.2d at 1142.

DISCUSSION

I. Whether the BIA properly found Le ineligible for 

adjustment of status where there is evidence that Le may 

have been convicted of a drug-related offense in Canada.

We first address whether Le’s 1991 conviction renders him ineligible for 

relief from removal. As a preliminary issue, the Government argues that Le is 

inadmissible because Le committed a controlled substance offense in violation 

of 8 U.S.C. § 1182(a)(2)(A)(i)(II). An alien who was inspected and admitted or 

paroled into the United States may seek adjustment of status in order to obtain 

permanent resident status in the United States. See 8 U.S.C. § 1255(a). The 

INA provides that an alien may have his status changed to lawful permanent 

resident if: “(1) the alien makes an application for such adjustment, (2) the 

alien is eligible to receive an immigrant visa and is admissible to the United 

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States for permanent residence, and (3) an immigrant visa is immediately 

available to him at the time his application is filed.” 8 U.S.C. § 1255(a). 

However, an alien is ineligible for adjustment of status if the alien is 

convicted of, admits having committed, or admits committing acts which 

constitute the essential elements of a violation of any law relating to a 

controlled substance. 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), (h), 1255(c)(2), (h); Rana 

v. Holder, 654 F.3d 547, 548 (5th Cir. 2011).

The propriety of the BIA’s decision regarding Le’s adjustment of status 

and relief from removal rests on 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.

A.

Le contends that while an alien generally bears the burden of proving 

that grounds for denial do not apply and that he is eligible for relief from 

removal, he does not bear the burden of proof in this instance because the 

statute proscribing Le’s conduct only “allocate[s] the burden of proof 

concerning factual elements of eligibility.” Le contends that determining 

eligibility, i.e., whether he was convicted of an offense relating to a controlled 

substance, is a “question of law” and thus a burden which the Government 

must bear. Le states that the burden of proof would have remained on him

unless the immigration judge or the BIA requested supporting documentation 

that could not reasonably be obtained. Le argues that because he could not 

obtain any additional information regarding his conviction, the ambiguity 

weighs in favor of finding that his offense did not relate to a controlled 

substance. Le’s position on appeal is rooted in Supreme Court cases Moncrieffe 

v. Holder and Descamps v. United States, decided after the submission of Le’s 

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brief to the BIA. Descamps v. United States, 133 S. Ct 2276 (2013); Moncrieffe 

v. Holder, 133 S. Ct. 1678 (2013).

The Government counters that 8 U.S.C. § 1229a(c)(4)(A)(i) plainly places 

the burden on Le. The Government disagrees with Le’s contention that Section 

1229a only “allocate[s] the burden of proof concerning factual elements of 

eligibility.” It alleges that the statutory language does not divide the eligibility 

requirements for relief between those that involve a factual and legal 

determination, but it solely applies to “the applicable eligibility requirements” 

as a whole. This includes the requirement that an alien demonstrate that he 

is not inadmissible for having a disqualifying conviction. 

As a general rule, the Government may remove an alien and deny his

application for adjustment of status if grounds for mandatory denial of the 

application may exist. See 8 C.F.R. § 1240.8(d) (emphasis added). However, 

an alien may apply for relief or protection from this removal. See 8 U.S.C § 

1229a(c)(4)(A). While the Government bears the burden of proving that an 

alien is removable, § 1229a(c)(3)(A), the alien has the burden of proof to 

establish that he satisfies the applicable eligibility requirements in order to 

prove that any grounds for denial do not apply. § 1229a(c)(4)(A); see also 8 

C.F.R. § 1240.8(d) (noting that the alien in a removal proceeding bears “the 

burden of establishing that he or she is eligible for any requested benefit or 

privilege and that it should be granted in the exercise of discretion”); RamonTorres v. Holder, 637 F.3d 544, 548 (5th Cir. 2011); Vasquez-Martinez, 564 F.3d

at 715–16; Matter of Blas, 15 I&N Dec. 626, 629 (BIA 1974). When an alien’s 

prior conviction is at issue, the offense of conviction itself “is a factual 

determination, not a legal one.” Vasquez-Martinez v. Holder, 564 F.3d 712, 716 

(5th Cir. 2009). However, determining whether that conviction is a particular 

type of generic offense is a legal question. See, e.g., Esparza-Rodriguez v. 

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Holder, 699 F.3d 821, 823–24 (5th Cir. 2012); Vasquez-Martinez, 564 F.3d at 

716–17. 

In Vasquez-Martinez, for example, an alien appealed the BIA’s 

determination that he produced insufficient evidence to carry his burden of 

proving that he was not an aggravated felon and therefore was ineligible for 

cancellation of removal under 8 U.S.C. § 1229b(a)(3). See 564 F.3d at 715–16. 

The alien argued that the burden of production was on the Government to 

submit evidence of a prior aggravated felony conviction. Id. at 716. Relying 

on 8 U.S.C. § 1229a(c)(4)(A)(i) and 8 C.F.R. § 1240.8(d), this court held that the 

alien, not the Government, bears “the initial burden of production of evidence” 

that he is eligible for discretionary relief. Id. 

Other circuits similarly hold that an alien seeking relief from removal 

bears the burden of proving that a conviction does not bar relief, even where 

ambiguities in the record about an alien’s conviction exist. See Garcia v. 

Holder, 584 F.3d 1288, 1289–90 (10th Cir. 2009). In Garcia, the Tenth Circuit 

reasoned that construing ambiguity in the record against the Government 

“effectively nullifies the statutorily prescribed burden of proof” and that “[t]he 

fact that [the alien] is not to blame for the ambiguity surrounding his criminal 

conviction does not relieve him of his obligation to prove eligibility for 

discretionary relief.” Id. at 1290. Similarly, the Fourth Circuit has held that, 

where the evidence of conviction is inconclusive, the burden remains on the 

alien to prove eligibility for relief from removal. See Salem v. Holder, 647 F.3d 

111, 116–20 (4th Cir. 2011).

Notwithstanding the general rule, Le cites, inter alia, the Second 

Circuit’s decision in Martinez v. Mukasey as supporting his position that the 

Government bears the burden to resolve any ambiguities in an inconclusive 

record. See 551 F.3d 113 (2d Cir. 2008). However, Martinez does not clearly 

state that the burden shifts to the Government to prove a lack of eligibility for 

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relief where a record is inconclusive. In Martinez, the court held that in an 

alien’s attempt to prove his burden, he must “show[] that he has not been 

convicted of [the underlying criminal offense].” Id at 122. Contrary to Le’s 

contention, the court did not shift the burden to the Government, but stated 

that in proving its burden, the alien may not delve into the particular facts 

surrounding his conduct when determining whether his burden is met, but 

must solely look to the language in the statute of conviction.3 Id.; accord 

Salem, 647 F.3d at 116–17 (concluding that fidelity to the INA requires that 

the noncitizen, as the party bearing the burden of proof, suffer the detriment).

Le also highlights that the Ninth Circuit provides some guidance

supporting his position. The Ninth Circuit has held that where the categorical 

approach applies, discussed supra, the Government must prove that the alien’s 

prior offense of conviction constitutes a generic offense that disqualifies him 

from relief, thus shifting the burden to the Government. See Almanza-Arenas 

v. Holder, 771 F.3d 1184, 1190, 1193 (9th Cir. 2014), en banc reh’g granted, 785 

F.3d 366 (May 8, 2015). The Almanza-Arenas court applied the categorical 

approach to determine whether the alien’s prior conviction for taking or driving 

another’s vehicle (joy-riding) “temporarily or permanently” precluded 

cancellation of removal as a “generic” crime of moral turpitude. 771 F.3d at 

 

3 In Martinez, the court used the categorical approach to address the issue of the 

alien’s conviction. In applying this approach, courts “compare the elements of the statute 

forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime.” 

Descamps, 133 S. Ct. at 2281. The categorical approach mandates that the adjudicator look 

only to the statute of conviction to determine whether the minimum conduct required under 

the statute meets the generic definition of the offense. Courts “look not to the facts of the 

particular prior case, but instead to whether the . . . statute defining the crime of conviction 

categorically fits within the ‘generic’ federal definition of a corresponding [offense].” 

Moncrieffe, 133 S. Ct. at 1684 (internal quotation marks and citation omitted); Cisneros-Perez 

v. Gonzales, 465 F.3d 386, 391 (9th Cir. 2006). On the other hand, courts that review an 

alien’s conviction using the modified categorical approach employ a different standard. 

Restrepo v. Att’y Gen. of U.S., 617 F.3d 787, 791 (3d Cir. 2010) (quoting United States v. 

Stinson, 592 F.3d 460, 462 (3d Cir. 2010)); Descamps, 133 S. Ct at 2282, 2285.

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1189–90. The court relied on Moncrieffe, 133 S. Ct. at 1693, to hold that 

ambiguity in the record concerning whether a prior conviction is deemed an 

aggravated felony is construed against the Government, notwithstanding the 

alien’s burden of proof under § 1229a(c)(4)(A)(i). See Almanza-Arenas, 771 

F.3d at 1189, 1192–94. 

Moncrieffe, however, does not control. In Moncrieffe, although the Court 

noted that a prior conviction for an aggravated felony is grounds both for 

removal and denial of discretionary relief from removal, the only issue before 

the court was the alien’s removability. See 133 S. Ct. at 1682–83. The Court

stated in a footnote that the approach used “is the same” in both contexts. Id. 

at 1685 n.4. However, this commentary was dicta because the issue of who 

bears the risk of an inconclusive record when determining an alien’s eligibility 

for relief was not before the Court. Id. The case at bar, unlike Moncrieffe, 

concerns eligibility for relief from removal and not removal itself. 

Similarly, Almanza-Arenas is inapposite. The court in Almanza-Arenas 

used the modified categorical approach to determine whether a particular 

offense qualified as a crime of moral turpitude rendering the alien ineligible 

for cancellation of removal. 771 F.3d at 1192. Le contends, however, that the 

categorical approach, and not the modified categorical approach, should be 

used to determine his eligibility for relief from removal. The distinction is 

significant if relying on Almanza-Arenas. Where a “statute criminalizes 

different kinds of conduct, some of which would constitute [a criminal offense] 

while others would not, the court must apply a modified categorical approach 

. . . look[ing] beyond the statutory elements to determine the particular part of 

the statute under which the defendant was actually convicted.” Restrepo v. 

Att’y Gen. of U.S., 617 F.3d 787, 791 (3d Cir. 2010) (quoting United States v. 

Stinson, 592 F.3d 460, 462 (3d Cir. 2010)). This approach specifically applies 

to divisible statutes, or statutes that “set out one or more elements of the 

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offense in the alternative,” effectively creating “several different . . . crimes.”

Descamps, 133 S. Ct at 2282, 2285. In such instances, courts have “conducted 

a limited factual inquiry, examining the record of conviction for the narrow 

purpose of determining the specific [elements] under which the defendant was 

convicted.” Jean–Louis v. Att’y Gen. of U.S., 582 F.3d 462, 466 (3d Cir. 2009) 

(referencing Singh v. Ashcroft, 383 F.3d 144, 162 (3d Cir. 2004)).

In Almanza-Arenas, the record indicated that a conviction stated that 

the alien was convicted of “temporarily or permanently” taking a vehicle, only 

one of which (permanently) is deemed a crime of moral turpitude. 771 F.3d at 

1192. The court construed the resulting ambiguity in the alien’s favor because 

of the inability to determine which of the two convictions the alien had 

received. Id. Unlike the record in Almanza-Arenas, there is no evidence that 

Le was convicted under a divisible statute that happened to also include

possession of cocaine. The same ambiguity in Almanza-Arenas is not present 

and we need not apply the modified categorical approach or construe any 

ambiguity in favor of Le.4 Notwithstanding the inconclusive evidence in the 

instant case, we conclude that the burden remains on Le to prove eligibility for 

relief from removal.

B.

Next, having established that the burden is on Le to show that he is 

eligible for relief, and treating his offense as an offense for the possession of 

cocaine, we now look to whether he has satisfied that burden, reviewing de 

novo whether the offense qualifies as an offense relating to a controlled 

substance under the INA. See Vasquez-Martinez, 564 F.3d at 717. In order for 

an alien to satisfy his burden of proving that grounds for mandatory denial of 

an application for relief do not apply, he must 

 

4 A petition for rehearing in Almanza-Arenas has been granted.

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comply with the applicable requirements to submit information or 

documentation in support of [his] application for relief . . . as 

provided by law or by regulation or in the instructions for the 

application form. In evaluating the testimony of the applicant . . . 

in support of the application, the immigration judge will determine 

whether or not the testimony is credible, is persuasive, and refers 

to specific facts sufficient to demonstrate that the applicant has 

satisfied [his] burden of proof. In determining whether the 

applicant has met such burden, the immigration judge shall weigh 

the credible testimony along with other evidence of record. Where 

the immigration judge determines that the applicant should 

provide evidence which corroborates otherwise credible testimony, 

such evidence must be provided unless the applicant demonstrates 

that [he] does not have the evidence and cannot reasonably obtain 

the evidence. 

8 U.S.C. § 1229a(c)(4)(B) (emphasis added).5

Because the INA does not define the phrase “relating to a controlled 

substance” and legislative history does not fully clarify which crimes Congress 

intended to characterize as relating to a controlled substance, the 

interpretation of this provision is within the purview of the BIA and the 

interpretation of its application to state and federal laws remains with the 

federal courts. See Esparza-Rodriguez v. Holder, 699 F.3d 821, 823 (5th Cir. 

2012).

Le contends that the BIA erred in determining that he failed to establish 

eligibility for adjustment of status because he “may have” been convicted of an 

offense relating to a controlled substance. Le argues that because he has 

repeatedly, consistently and credibly denied ever having possessed, sold, 

 

5 The standards for burdens of proof and credibility for adjudicating applications for 

discretionary relief were amended by the REAL ID Act of 2005 and apply to applications 

made on or after May 11, 2005. REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 

231 (2005); see also Matter of S-B-, 24 I&N Dec. 42, 42 (BIA 2006). Under the REAL ID Act, 

the testimony of the applicant may be sufficient to sustain his burden without corroboration, 

but only if the applicant satisfies the trier of fact that his testimony is credible, persuasive, 

and refers to specific facts sufficient to demonstrate that the applicant has satisfied his 

burden of proof. See INA § 240(c)(4)(B). 

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purchased or used any illegal drugs, he has not “admitted” committing a 

criminal offense or the essential elements of an offense related to a controlled 

substance. Therefore, if he is inadmissible, it may only be because he has been 

actually convicted of such an offense. Le argues that he has proven by a 

preponderance of the evidence that the aforementioned grounds for conviction 

do not apply. Le also alleges that requiring otherwise would require him to 

“prove a negative”: Despite his testimony and despite the ambiguities on the 

record, he was not convicted of a controlled substance offense.

The Government counters that there is substantial record evidence to 

support the immigration judge’s determination that Le may have sustained a 

conviction under Canada’s Narcotic Control Act. Contrary to Le’s contention 

that “there is no evidence of a conviction in this case” or that the record is 

“ambiguous” as to whether Le sustained a conviction under Canada’s Narcotic 

Control Act, the Government highlights that the following is evidence of Le’s 

failure to identify the statutory basis of his conviction and failure to show that 

there was no nexus between his conviction and a controlled substance: (1) Le 

submitted evidence of a pardon for his conviction; (2) DHS submitted evidence 

corroborating the Parole Board’s conclusion that Le did in fact have a drugrelated conviction, as shown in his criminal conviction printout; and (3) DHS 

produced evidence showing that United States immigration officials recognized 

Le’s conviction as one involving a controlled substance. The BIA determined 

that Le failed to meet this burden due to the presence of such overwhelming 

evidence to the contrary.

In order for Le to meet his burden, he is required to first identify the 

statute under which his criminal offense arises, something Le has failed to do. 

Peters v. Ashcroft, 383 F.3d 302, 307 (5th Cir. 2004); Vasquez-Martinez, 564 

F.3d at 716–17. Here, Le does not present evidence demonstrating whether he 

was convicted under a Canadian federal statute, a provincial law, or even a 

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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. Despite Le’s contention that he could not have been 

convicted of such an offense, the record includes a conviction for possession of 

cocaine and Le provides no statutory basis for his 1991 conviction that 

comprises of something other than a drug offense. This presentation of an 

inconclusive record of conviction is insufficient to meet his initial burden of 

demonstrating eligibility. 

Second, Le must demonstrate that no nexus existed between his statute 

of conviction and the controlled substance offense pursuant to 8 U.S.C. § 

1182(a)(2)(A)(i)(II). Peters, 383 F.3d at 307. Controlled substances include any 

drug or other substance, or immediate precursor, included in Schedule I, II, 

III, IV, or V of 21 U.S.C. § 812. We have held that possession of cocaine is an 

offense relating to a controlled substance. See Enriquez-Gutierrez, 612 F.3d at 

403. Various courts, including this court, have also granted an expansive 

reading of what constitutes “relating to” under federal law. Mellouli v. Lynch, 

135 S. Ct. 1980, 1990 (2015); Luu–Le v. INS, 224 F.3d 911, 915–16 (9th Cir.

2000) (“We have construed the ‘relating to’ language broadly in the past.”); see 

also Peters, 383 F.3d at 306–07 (Congress[] [has made] consistent effort[s] to 

target aliens who are involved in drug-related activities.”); Coronado–Durazo

v. INS, 123 F.3d 1322, 1326 (9th Cir. 1997) (stating that Congress has 

expressed great zeal in eliminating illicit drug trafficking and has “clearly 

spoken against aliens who abuse the hospitality of the United States” in this 

way). 

In Mellouli v. Lynch, the Supreme Court recognized that a conviction for 

an offense “relating to a controlled substance” must be rooted in there being a 

direct link between an alien’s crime of conviction and a particular federally

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controlled drug. See 135 S. Ct. at 1990. Where the government does not show

that a conviction relates to a substance listed in the federal controlled 

substance schedules, an individual convicted of a state drug paraphernalia 

offense is not deportable under the deportability ground for conviction of an 

offense “relating to” a controlled substance. Id. It is not enough that the 

foreign statute of conviction bears some general relation to federally controlled 

drugs. Id. In Peters, for example, we considered identical statutory language 

in the removal context and determined that a prior conviction for soliciting the 

transportation of at least two pounds of marijuana “on its face constitute[d] a 

violation of a law ‘relating to a controlled substance,’” rendering the alien 

removable under 8 U.S.C. § 1227(a)(2)(B)(i). Peters, 383 F.3d at 306–07. We 

did not review the statute using the categorical approach. 

The Third Circuit addressed a line of cases in which the relevant federal 

conduct is presented not as a generic, unitary crime requiring analysis under 

the categorical approach, but as a conviction “relating to” other crimes or 

objects. See Rojas v. Att’y Gen. of the U.S., 728 F.3d 203, 215, 217 (3d Cir. 2013) 

(en banc). The inquiry did not focus on a strict element-by-element match 

between the offense of conviction and the federal baseline, but focused on the 

nature of the defendant’s conviction and whether it “stand[s] in relation,” 

“pertain[s,]” has “bearing of concern,” or “refer[s]” to the object or crime of 

comparison. Id. at 217 (citing Desai v. Mukasey, 520 F.3d 762, 764 (7th Cir. 

2008)). 

Here, evidence supports the BIA’s finding that Le failed to meet his 

burden. Le’s evidence of conviction is as follows: Le was pardoned for multiple 

“conviction(s)”; the secondary inspection worksheet reflected that Le has a 

“conviction for drug possession”; and a RCMP document pertaining to the 1991 

offense was entitled “Criminal Convictions Condi[tio]nal and Absolute 

Discharges and Relating Information.” Moreover, Le pleaded guilty to 

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possessing cocaine. While the immigration judge and the BIA found that Le 

provided credible testimony, and despite Le’s compliance with other

requirements of the INA, including submitting documentation concerning his 

criminal offenses and submitting biometric information for required 

background checks, Le is unable to provide documentation that could 

completely dispel the evidence presented showing that he was in fact convicted 

of possession of a narcotic. Moreover, in a final comment, the immigration 

judge suggested to Le that he apply to the RCMP for the release of any 

pardoned conviction records in its possession. There is no record evidence that 

Le has done so. 

In light of Mellouli, Peters, and Rojas, Le’s burden to prove that his 

conviction did not relate to a controlled substance could have been met, for 

example, 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. Although Mellouli did not address relief from removal, 

we construe the term “relating to” in the same way as the Mellouli court. The 

aforementioned evidence, without more, shows a failure by Le to establish that 

his offense does not “stand in relation,” “pertain,” have “bearing of concern,” or 

“refer” to a controlled substance. 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. 

C.

Le contends that the 2008 pardon of his 2001 offense indicates that he

has no conviction for an offense relating to a controlled substance. We conclude 

that the BIA did not err in determining that Le’s pardon by the Canadian NPC

has no bearing on his conviction for immigration purposes. As the Government 

notes, foreign pardons are generally not recognized under United States 

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immigration laws. See Danso v. Gonzales, 489 F.3d 709, 717 (5th Cir. 2007). 

Other circuits have held that an alien’s conviction remains valid for 

immigration purposes even where a foreign law essentially expunges or 

pardons the conviction because drug offense pardons are not recognized under 

the INA. See Mullen-Cofee v. INS, 976 F.3d 1375, 1379 (11th Cir. 1992) 

(holding that a Canadian pardon, in itself, does not wipe out an alien’s foreign 

conviction or relieve him from disabilities flowing from that conviction). We

conclude that Le’s pardon does not serve to eradicate his 1991 controlled 

substance conviction. In sum, the record supports a finding that the BIA did 

not err in determining that Le was inadmissible due to his 1991 conviction. 

Accordingly, we reject Le’s argument that his conviction does not render 

him ineligible for relief from removal and DENY his petition for review on this 

ground.6

II. Whether the BIA abused its discretion when it denied Le’s 

motion for reconsideration. 

Le also contends that the BIA abused its discretion in denying his motion 

for reconsideration. This court reviews the BIA’s denial of a motion to 

reconsider under a highly deferential abuse of discretion standard. Lara, 216 

F.3d at 496; Osuchukwu, 744 F.2d at 1141–42. Le has failed to overcome this 

standard. Pursuant to 8 U.S.C. § 1255(a), an alien is entitled to an adjustment 

 

6 For the first time on appeal, the Government also contends that even if Le can meet 

the eligibility requirements of 8 U.S.C. § 1255(a), Le’s adjustment of status is barred by INA 

§ 245(c)(2) because Le failed to continuously maintain a lawful immigration status prior to 

filing for adjustment of status to lawful permanent resident. Generally, “[t]his [c]ourt will 

not consider [ ] claim[s] raised for the first time in a reply brief.” Yohey v. Collins, 985 F.2d 

222, 225 (5th Cir. 1993); see also Hernandez-Flores v. Holder, 488 F. App’x 847, 848 (5th Cir. 

2012); Falek v. Gonzales, 475 F.3d 285, 289 (5th Cir. 2007). This court will only review 

reasons provided by the agency for its actions, and not post hoc appellate arguments of 

counsel. See INS v. Ventura, 537 U.S. 12, 16–17 (2002). The BIA did not review nor base its 

denial of Le’s adjustment of status on INA § 245(c)(2) and its requirements. Accordingly, this 

Court lacks jurisdiction to review this claim.

 

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of status at the Attorney General’s discretion “if (1) the alien makes an 

application for such adjustment, (2) the alien is eligible to receive an 

immigration visa and is admissible to the United States for permanent 

residence, and (3) an immigrant visa is immediately available to [the alien] at 

the time his application is filed.” Even if Le’s visa application was approved 

and an immigrant visa was immediately available to him, Le has not 

established that he is admissible to the United States for permanent residence. 

See 8 U.S.C. §§ 1101(b)(1), 1253(a). As the record indicates, neither Le’s 

pardon, the letter produced to show the unavailability of additional municipal 

court records, nor Le’s testimony were sufficient to show that he does not have 

a disqualifying conviction. The BIA’s decision was based squarely on this 

evidence presented in the record, which supported its earlier decision. In view 

of the evidence, we conclude that the BIA did not abuse its discretion in 

denying Le’s motion for reconsideration. Accordingly, Le is not entitled to 

review of the BIA’s decision and we DENY Le’s petition for review on this 

ground.

CONCLUSION

For the reasons set forth above, we DENY Le’s petition for review.

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