FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIONEL PRINCE DEON BOGLE,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 19-72290

Agency No.

A086-972-722

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted July 7, 2020

Portland, Oregon

Filed June 23, 2021

Before: Mark J. Bennett and Eric D. Miller, Circuit Judges, 

and Benita Y. Pearson,* District Judge.

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

Denying Lionel Prince Deon Bogle’s petition for review 

of a decision of the Board of Immigration Appeals, 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 

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.

** 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

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 may not have had an opportunity, 

prior to conviction, to dispute. However, the panel explained 

that the approach still requires fundamentally fair procedures 

and requires the government to prove that the quantity of 

marijuana exceeded thirty grams by clear and convincing 

evidence.

The panel concluded that the circumstances specific to 

this case easily satisfied that burden. The panel explained 

that the police report here was probative and reliable, noting 

that it was detailed, internally consistent, and recorded 

observations of fact. The panel declined to adopt a rule that 

no police report could ever be sufficient, standing alone, 

concluding that such a categorical rule would be directly 
4 BOGLE V. GARLAND

contrary to the Supreme Court’s instruction to consider the 

particulars of each case, and would also impose a higher 

evidentiary standard for removals than for certain criminal 

convictions. In addition to the police report, the panel 

considered the following circumstances: (1) Bogle’s failure 

to challenge the police report’s record of the amount of 

marijuana, despite his protests that he did not know there 

was marijuana in the vehicle; (2) his reliance on the 

theoretical argument that he could have possessed 

somewhere between 28.36 and thirty grams, rather than any 

offer of proof that he did possess such an amount; (3) his 

testimony that the bag recovered by the police contained no 

more than 40 grams and that there was marijuana in the car; 

and (4) the fact that the police report indicated that the 

reported amount exceeded the statutory cutoff by a large 

degree.

Finally, the panel did not grant review of the denial of 

Bogle’s application for cancellation of removal, explaining 

that, barring a colorable constitutional claim or question of 

law, the court lacks jurisdiction to review such a 

discretionary decision.

Dissenting, Judge Pearson agreed that that Bogle’s 

conditional discharge was a conviction under the INA, that 

the circumstance-specific approach applies in this context, 

and in rejecting a categorical rule that a police report, alone, 

can never be sufficient to meet the government’s burden. 

However, Judge Pearson concluded that the police report in 

this case did not satisfy the government’s burden of clear and 

convincing evidence. Judge Pearson wrote that the 

government could only deem Bogle removable after it had 

proven that the conviction itself, i.e. Bogle’s plea, involved 

30 grams of marijuana or more, and here, there was no 

indication that the police report was a part of the factual basis 
BOGLE V. GARLAND 5

for Bogle’s guilty plea, and nothing in the record indicated 

that Bogle admitted or stipulated to an amount of marijuana, 

that evidence was presented to the Georgia court concerning 

the quantity of marijuana, or that the court made any finding 

as to a quantity.
6 BOGLE V. GARLAND

COUNSEL

Kari E. Hong (argued), Boston College Law School,

Newton, Massachusetts, for Petitioner.

David Kim (argued) and Aric A. Anderson, Trial Attorneys; 

Kohsei Ugumori, Senior Litigation Counsel; Office of 

Immigration Litigation, Civil Division, United States 

Department of Justice, Washington, D.C.; for Respondent.

OPINION

BENNETT, Circuit Judge:

Lionel Prince Deon Bogle, a native and citizen of 

Jamaica, seeks review of the dismissal by the Board of 

Immigration Appeals (BIA) of his appeal from the 

immigration judge’s (IJ) order of removal and denial of his 

application for cancellation of removal. We have 

jurisdiction pursuant to 8 U.S.C. § 1252 and deny the 

petition.

In general, a drug conviction is a removable offense 

under 8 U.S.C. § 1227(a)(2)(B)(i). However, under the 

personal-use exception of § 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 

possession of more than one ounce of marijuana. One ounce 

is 28.35 grams, so viewing Bogle’s plea alone, it is possible 

that the personal-use exception applies. But the relevant 

police report states that Bogle was in possession of 47.12

ounces of marijuana—that is, 1335.852 grams—about 

4300% over the thirty-gram limit.
BOGLE V. GARLAND 7

The issue we must first decide is whether the categorical, 

modified categorical, or circumstance-specific approach 

applies to the personal-use exception’s thirty-gram limit. If 

the categorical approach applies, Bogle’s offense did not 

categorically involve the possession of more than thirty 

grams of marijuana, and our analysis stops there. If the 

modified categorical approach applies, we could look at 

certain relevant documents, but likely not the police report. 

See United States v. Almazan-Becerra, 537 F.3d 1094, 1097 

(9th Cir. 2008). If the circumstance-specific approach 

applies, we would then decide whether the circumstances 

specific to this case establish by clear and convincing 

evidence that Bogle’s offense involved the possession of 

more than thirty grams of marijuana.

This is a matter of first impression in this circuit, and we 

conclude that the circumstance-specific approach applies to 

the thirty-gram limit of § 1227(a)(2)(B)(i)’s personal-use 

exception. We further conclude that the circumstances 

specific to this case clearly establish that the amount of 

marijuana in Bogle’s possession exceeded thirty grams.

I. FACTS

The circumstances are the following.

Bogle entered the United States in 2006 and became a 

lawful permanent resident in 2010. In 2014, he was arrested 

in Georgia for possession with intent to distribute more than 

one ounce of marijuana. The police report states that the 

officers found, in the rental car that Bogle was driving, three 

“gallon[-]size plastic bags . . . [containing] a green leafy 

material.” The police report also states: “The three 

gallon[-]size plastic bags contain[ing] the green leafy 

material tested positive for marijuana. Bag number 1’s net 

weight was 446.6 grams, bag number two’s net weight was 
8 BOGLE V. GARLAND

450.5 grams and bag number three’s net weight was 438.8, 

totaling 47.12 ounces equaling 2.94 pounds, with a street 

value of $9000.00.” Bogle received a “conditional 

discharge” for this offense by pleading guilty to possession 

of more than one ounce of marijuana under a Georgia statute 

that allows a court to place certain defendants on probation 

without a formal adjudication of guilt, in exchange for a 

guilty plea. See Ga. Code § 16-13-2(a). Under the statute, 

compliance with the conditions of probation guarantees the 

discharge of all charges relating to the offense once the term 

of probation expires, and that discharge “[is not] deemed a 

conviction for purposes” of Georgia law. See id.

In 2016, the government initiated removal proceedings 

against Bogle under § 1227(a)(2)(B)(i) based on his 

controlled substance offenses,1 and in 2019, the IJ found him 

1 Originally, the removal proceedings were based on two separate 

offenses: Bogle’s offense in Georgia and a 2010 Arizona conviction for 

the attempted sale or transportation of marijuana. According to the 

incident report for the Arizona conviction, there were five pounds of 

marijuana in the car Bogle was driving, along with receipts for two small 

shipping boxes and packing peanuts. Arizona later set aside Bogle’s 

judgment of guilt for this offense, and in 2019, the IJ concluded that the 

conviction could not be considered for removal purposes, given that the 

government did not address the Arizona conviction in its brief and thus 

had “not met its burden to prove” that the “conviction was vacated solely 

for rehabilitative reasons or reasons related to [Bogle’s] immigration 

status.” See Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir. 

2011). Nevertheless, the IJ still found, based on the facts underlying the 

vacated conviction, that there was “reason to believe [Bogle] was 

involved in drug trafficking” in Arizona. Plainly read, Bogle’s testimony 

in 2019 compels the IJ’s conclusion. Bogle, who was counseled at the 

time, stated: “I got [the marijuana]—well, someone gave it to me to keep. 

Pick it up at Phoenix, and they would just pay me like $300 to $500 just 

to hold it and then they will pick it up back from me.” He also admitted: 

“I know there’s marijuana in the bag. For sure, I know there’s marijuana 
BOGLE V. GARLAND 9

removable. In those proceedings, the IJ considered Bogle’s 

testimony and all forty-two exhibits that had been 

admitted—including those admitted in Bogle’s 2017 

hearings before a different IJ, and including the transcripts 

of Bogle’s prior testimony in those hearings.

When Bogle testified in 2019, he never claimed the 

entire Georgia police report was inaccurate. Rather, he made 

a point to clarify that only parts of it were: “As to the police 

report especially in Georgia, Your Honor, I—it’s not 

accurate. It’s not fully accurate, Your Honor.” (Emphasis 

added). In his decision, the IJ noted the inaccuracies Bogle 

alleged:

[Bogle] did not say someone would tell him 

where to bring the vehicle when he got to 

Thompson; he did not get paid $180 to make 

the trip, but had $180 with him when 

arrested; he did not admit to the police that he 

knew marijuana was in the vehicle; and he 

did not tell the police he did it to make some 

extra money.

Bogle never disputed that nearly three pounds of marijuana 

were found in the car he was driving, as recorded in the 

police report.

in the bag, Your Honor, and I accept the marijuana and took it back to 

Chandler. That much I did, Your Honor.”

We do not consider the Arizona conviction a “circumstance specific 

to this case.” And we need not decide whether the facts underlying that 

conviction and Bogle’s testimony about them are circumstances specific 

to this case.
10 BOGLE V. GARLAND

Nor could he, as his testimony was directly to the 

contrary:

Petitioner: [T]he rental car was not in my 

name. There was no evidence that I knew the 

marijuana was in the car.

***

IJ: You’re telling me that the 2014 case when 

you’re in Georgia, driving a car, and all this 

marijuana in it just happened to be bad luck. 

You won the reverse lottery? Is that what you 

want me to believe?

***

Petitioner: Yes, Your Honor because–

***

Petitioner: Because I didn’t, I didn’t—as I 

said, I—as I told the Honorable Judge before, 

the cops said they found it in secret 

compartment. I didn’t know it was a secret 

compartment in the vehicle, Your Honor. . . .

I admit there was marijuana in the car, and I 

admit to it but did I knowingly get in the car 

and drove it knowing that marijuana was 

there, no, I did not. I just did not, your Honor.

(Emphasis added). The only fair reading of this exchange is 

that Bogle claimed he did not know the three pounds of 

marijuana were in the car—not that Bogle claimed the three 

pounds were actually thirty grams or fewer. Some of 
BOGLE V. GARLAND 11

Bogle’s statements can only be reasonably interpreted as 

admissions that three pounds of marijuana were in the car, 

as described in detail in the police report—particularly his 

affirmative answer to the IJ’s question about whether “all 

this marijuana in [the car Petitioner had rented and was 

driving] just happened to be bad luck” and his admission “I 

admit there was marijuana in the car, and I admit to it.”

In Bogle’s 2017 testimony as well, he disputed that he 

knowingly possessed the marijuana in the rental car. He 

testified: “I didn’t consciously knowingly get into that car 

and drove it with knowing that marijuana was there. I admit

I had possession of the car and it had possessed the 

marijuana, but I didn’t consciously and knowingly get into 

that car that night knowing it was there.” (Emphasis added). 

Bogle’s counsel added: “The [Petitioner] has consistently 

contested the police report from [Georgia] as to whether or 

not he knew the marijuana was in the car in 2014.” 

(Emphasis added). In other words, Bogle vigorously 

contested his knowledge of the marijuana in the rental car, 

but he never contested the amount of marijuana recovered 

from the car. In fact, in 2017, Bogle expressly 

acknowledged the amount of some of the marijuana in the 

rental car. He testified that the police found a “little” bag of 

marijuana, “[n]othing more than say 40, 40 grams,” in 

addition to the marijuana they later found “hidden in the 

firewall of the car.” (Emphasis added).

It was against this backdrop that the IJ considered the 

Georgia police report. The police report recorded the 

quantity of marijuana at over 1300 grams—1270 grams 

greater than the thirty-gram cutoff for the personal-use 

exception to apply. And contrary to Bogle’s testimony 

before the IJs that he did not know the marijuana was in the 
12 BOGLE V. GARLAND

car,2 the police report states that Bogle “told [the officer] that 

he knew that drugs [were] in the car and only did it to make 

some extra money.” And, according to the report, there was 

“a very strong odor of marijuana coming from inside of the 

car,” which was a rental that Bogle was borrowing to drive 

from Atlanta to Augusta and back to Atlanta “for a friend.” 

Upon inspecting the rental agreement, the officer “saw that 

[the vehicle] had been rented by someone else and that 

Bogle’s name had not been added as a person permitted to 

drive it.” “Bogle was extremely nervous and breathing 

heavy . . . [with] his carotid artery pulsating on the right side 

of his neck.” He told the officer he had been driving unsafely 

because he felt “sleepy.”

The IJ specifically found that the report was “extremely 

probative” and its admission “fundamentally fair.” The BIA 

“agree[d] . . . that the admission of the [Georgia police 

report] was fundamentally fair and reliable” and found that 

the “report reflect[ed] that the circumstances that resulted in 

[Bogle’s] Georgia conviction involved his being in 

possession of approximately three pounds of marijuana.” 

Indeed, Bogle confirmed in his 2017 testimony that he 

believed the police report stated the total amount of 

marijuana as “two pounds and nine ounce[s].”

2 Both the 2017 IJ and the 2019 IJ found that Bogle’s testimony was 

not credible, because it was “inconsistent, implausible, and contained 

admissions to prior dishonesty to police officers regarding his actions.” 

For example, while Bogle testified in 2019 that he was not paid $180 for 

the trip in 2009, he testified in 2017 that he was. The 2019 IJ 

summarized: “In [Bogle’s] previous proceedings in this matter, IJ Davis 

found [Bogle] ‘was not only not credible, but he was less than honest.’ 

Here, the Court also finds [Bogle] was not credible in the additional 

testimony he provided to the Court.” This, too, is part of the 

circumstances specific to this case.
BOGLE V. GARLAND 13

Despite that knowledge, Bogle never objected to the 

amount recorded by the police report. He argues only that 

his conditional discharge “could have rested on facts that do 

not relate to no more than 30 grams of marijuana, [so] the 

Court cannot conclusively connect the [conditional 

discharge] to what is a controlled substance conviction under 

INA § 237(a)(2)(B)(i).” The BIA rejected that theory, 

dismissing Bogle’s appeal of the IJ’s decision.

II. DISCUSSION

“Whether a particular conviction constitutes a removable 

offense is a question of law that we review de novo.” 

Alvarado v. Holder, 759 F.3d 1121, 1126 (9th Cir. 2014). 

Bogle gives three reasons that his conviction did not so 

qualify. First, he argues that the conditional discharge for 

the Georgia offense was not a “conviction” for purposes of 

the Immigration and Nationality Act (INA). Second, he 

argues that the categorical or modified categorical approach 

applies to the thirty-gram limit of § 1227(a)(2)(B)(i)’s 

personal-use exception, and that his offense did not 

categorically involve more than thirty grams of marijuana. 

Third, he argues that even if the circumstance-specific 

approach applies, the circumstances here do not clearly 

establish that he was in possession of more than thirty grams 

of marijuana. He also argues that the IJ erred in finding him 

statutorily ineligible for cancellation of removal, and that it 

was an abuse of discretion for the IJ to deny his application 

even if he were eligible. We address each argument in turn.

A. Bogle’s conditional discharge was a conviction 

under the INA.

Bogle argues that his conditional discharge was not a 

conviction as defined by the INA. He points to the lack of 

explicit evidence (like a plea agreement or plea colloquy) 
14 BOGLE V. GARLAND

that he pleaded guilty to or was found guilty of marijuana 

possession. He also points to the rehabilitative purpose of 

conditional discharges under the Georgia statute. These 

arguments are unavailing.

The INA defines “conviction” as either “a formal 

judgment of guilt . . . or, if adjudication of guilt has been 

withheld, where”—

(i) a judge or jury has found the alien guilty 

or the alien has entered a plea of guilty or 

nolo contendere or has admitted 

sufficient facts to warrant a finding of 

guilt, and

(ii) the judge has ordered some form of 

punishment, penalty, or restraint on the 

alien’s liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A). Bogle’s conditional discharge 

for his Georgia offense was not a formal judgment of guilt, 

Ga. Code § 16-13-2(a), so to qualify as a conviction, the 

conditional discharge must satisfy the two INA requirements 

for situations in which an adjudication of guilt has been 

withheld.

We hold that it does. First, Bogle’s conditional 

discharge explicitly required him to plead guilty to or be 

found guilty of possessing marijuana. Id. Thus, we know 

that Bogle’s conditional discharge satisfies the first INA 

requirement. Second, the terms of Bogle’s conditional 

discharge imposed four years of probation, “the first 16 days 

to be served in confinement.” The Georgia court both 

punished Bogle and restrained his liberty, satisfying the 

second INA requirement.
BOGLE V. GARLAND 15

The rehabilitative nature of the conditional discharge 

statute does not change our conclusion that Bogle was 

convicted for purposes of the INA. Although the statute 

declares that “[d]ischarge and dismissal . . . shall not be 

deemed a conviction,” id., a state “cannot dictate how the 

term ‘conviction’ is to be construed under federal law.” 

Reyes v. Lynch, 834 F.3d 1104, 1107 (9th Cir. 2016) 

(quotation marks and citation omitted). “Immigration law 

provides that, although the slate may be clean for various 

state purposes, that is not necessarily so for purposes of 

removal of an illegal alien, such as [Bogle].” Id. at 1106. 

Because the conditional discharge statute required Bogle to 

plead guilty to or be found guilty of possessing marijuana, 

and because it imposed a punishment for that guilt, “the 

federal definition of conviction is satisfied regardless of the 

rehabilitative purpose” of the conditional discharge statute. 

Id. at 1108.

B. The circumstance-specific approach applies to the 

thirty-gram limit of the personal-use exception.

Bogle contends that the categorical or modified 

categorical approach, rather than the circumstance-specific 

approach, applies to the thirty-gram limit of the personal-use 

exception. We first note that his position has been rejected 

by the BIA and the other circuits to have addressed this issue. 

See Matter of Dominguez-Rodriguez, 26 I. & N. Dec. 408, 

410–14 (BIA 2014); Matter of Davey, 26 I. & N. Dec. 37, 39 

(BIA 2012); Cardoso de Flores v. Whitaker, 915 F.3d 379, 

382–85 (5th Cir. 2019) (per curiam); Mellouli v. Holder, 

719 F.3d 995, 1001 (8th Cir. 2013), rev’d on other grounds, 

135 S. Ct. 1980 (2015). Here we defer to the BIA’s sound 

interpretation that the personal-use exception calls for an 

inquiry into the specific circumstances surrounding the 
16 BOGLE V. GARLAND

offense and decline to create a conflict with our sister 

circuits.

Courts “generally employ a ‘categorical approach’ to 

determine whether [a] state offense is comparable to an 

offense listed in the INA,” Moncrieffe v. Holder, 569 U.S. 

184, 190 (2013) (emphasis added), and “[i]n the main, 

§ 1227(a)(2)(B)(i) . . . has no . . . circumstance-specific 

thrust,” Mellouli v. Lynch, 135 S. Ct. 1980, 1986 n.3 (2015) 

(emphasis added). However, the Supreme Court has never 

held that the categorical approach must be applied to the 

personal-use exception of § 1227(a)(2)(B)(i), and we have 

never held that the categorical approach applies to the 

exception in its entirety. Although we applied the modified 

categorical approach in Medina v. Ashcroft, 393 F.3d 1063 

(9th Cir. 2005), in determining that a conviction for 

attempting to be under the influence of a controlled 

substance (THC-carboxylic acid) was a match for the 

possession for one’s own use of marijuana (the type of 

offense covered by the personal-use exception), id. at 1065–

66,3 we did not address the exception’s thirty-gram limit 

except to note that “[n]othing in the statutory definition of 

[the] crime or in the specified documents negates the 

possibility (indeed the likelihood) that Medina’s conviction 

resulted from the personal use of marijuana in an amount less 

than 30 grams,” id. at 1066. And in Medina, unlike here, it 

3 Our decision in Medina applying the modified categorical 

approach instead of the circumstance-specific approach appears to 

conflict with the Supreme Court’s later decision in Nijhawan v. Holder, 

557 U.S. 29 (2009). See infra p. 17–18. We leave that issue for another 

day, as our case relates only to the thirty-gram limit, and not how to 

determine whether the offense of conviction was an offense involving 

possession for one’s own use.
BOGLE V. GARLAND 17

was undisputed that the petitioner had used or possessed 

fewer than thirty grams of marijuana. Id. at 1066 n.9.

We afford Chevron deference to published decisions of 

the BIA that interpret the INA. Diaz-Quirazco v. Barr, 

931 F.3d 830, 838 (9th Cir. 2019). If Congress has not 

spoken to the particular issue or the statute is ambiguous, and 

if the BIA’s interpretation is reasonable, we will accept that 

interpretation, even if it differs from what we believe to be 

the best interpretation. Perez-Guzman v. Lynch, 835 F.3d 

1066, 1073 (9th Cir. 2016).

The BIA held in Matter of Davey that the circumstancespecific approach applies to the personal-use exception. 

26 I. & N. Dec. at 39; see also Matter of DominguezRodriguez, 26 I. & N. Dec. at 410–14 (applying Matter of 

Davey in the removal context). Section 1227(a)(2)(B)(i) 

does not unambiguously direct us to use either the 

categorical approach or the circumstance-specific approach 

in determining whether Bogle’s offense involved thirty 

grams or less of marijuana. Therefore, we will defer to 

Matter of Davey and apply the circumstance-specific 

approach, so long as doing so is reasonable.

The Supreme Court’s decision in Nijhawan v. Holder, 

557 U.S. 29 (2009), discusses the conditions that call for a 

circumstance-specific inquiry. As the name suggests, the 

circumstance-specific approach applies when the statute 

“refers to the specific circumstances in which a crime was 

committed,” rather than “generic crimes.” Id. at 38. One 

indication that a statute refers to specific circumstances 

rather than generic crimes is statutory language focusing on 

“the conduct involved in” rather than “the elements of” an 

offense. Id. at 39 (quotation marks omitted). Another 

indication is a scarcity of state and federal offenses 

categorically matching the INA provision at issue, or an 
18 BOGLE V. GARLAND

imbalance where only some states’ offenses are a categorical 

match, so that applying the categorical approach would leave 

the provision with little, if any, meaningful application or 

would cause the provision to apply in a limited and 

haphazard manner. Id. at 39–40.

The statutory language of the personal-use exception 

explicitly focuses on the conduct involved in an offense, not 

its elements. The exception applies to a “single offense 

involving possession for one’s own use of 30 grams or less 

of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis 

added). While Bogle points to no state or federal marijuana 

offense with a threshold of thirty grams, the government 

identifies two, see Miss. Code Ann. § 41-29-139(c)(2); 

35 Pa. Cons. Stat. § 780-113(a)(31), and our research has 

revealed no others, meaning that applying the categorical 

approach to the thirty-gram limit would render the personaluse exception meaningless or, at best, haphazard in 

application.4

Therefore, the BIA’s decision in Matter of Davey is 

consistent with the Supreme Court’s analysis in Nijhawan

and accordingly, is reasonable. See Cardoso de Flores, 

915 F.3d at 382–83 (“[W]e conclude that the BIA’s position 

that the personal-use exception requires a circumstancespecific inquiry is a reasonable interpretation of the INA; we 

therefore defer to the BIA. The Supreme Court’s analysis in 

4 The same would have been true when the personal-use exception 

was first added to the INA in 1990, as noted by the Fifth Circuit in 

Cardoso de Flores. In 1990, “the federal simple-possession statute” did

not “distinguish between possession of greater or less than 30 grams,” 

and although a “majority of states and the District of Columbia” did 

“carve[] out a lower offense for simple possession” of a small amount of 

marijuana, the threshold was twenty-nine grams, not thirty. Cardoso de 

Flores, 915 F.3d at 384.
BOGLE V. GARLAND 19

[Nijhawan] all but compels this result.” (citation omitted)). 

Indeed, it is hard to see how a court could ever determine 

whether an “offense involv[ed] possession for one’s own use 

of 30 grams or less of marijuana” without looking at the 

specific circumstances of the particular offense. We will 

defer to the BIA as to the thirty-gram limit of the personaluse exception and evaluate whether the circumstances 

specific to this case are sufficient to meet the government’s 

burden of proving by clear and convincing evidence that 

Bogle possessed more than thirty grams of marijuana.

C. The circumstances specific to this case clearly 

establish that Bogle knowingly possessed more than 

thirty grams of marijuana.

Bogle argues that because his conviction was for the 

possession of more than one ounce (28.35 grams) of 

marijuana, he could have possessed between 28.36 and thirty 

grams—qualifying him for the personal-use exception. He 

insists that the police report cannot on its own establish that 

he knowingly possessed more than thirty grams, even under 

the circumstance-specific approach. Such an argument both 

misreads the record and misunderstands the circumstancespecific approach. The police report is not the only part of 

the record establishing that Bogle knowingly possessed 

more than thirty grams of marijuana, but even if it were, a 

police report alone can be sufficient under the circumstancespecific approach, if sufficiently detailed and reliable.

Applying the circumstance-specific approach requires us 

to consider “the particular circumstances in which an 

offender committed the crime on a particular occasion.” 

Nijhawan, 557 U.S. at 38. This differs from the categorical 

approach with its “focus on the formal elements of generic 

offenses,” Matter of Davey, 26 I. & N. Dec. at 39, and the 

modified categorical approach, under which the court can 
20 BOGLE V. GARLAND

consider only certain documents, typically not including a 

police report, Almazan-Becerra, 537 F.3d at 1097.

Although the dissent concurs in our holding that the

circumstance-specific approach applies to the thirty-gram 

limit of the personal use exception, Dissent at 32, the 

dissent’s application of the circumstance-specific approach 

confuses the requirements of the circumstance-specific 

approach with the requirements of the categorical and 

modified categorical approaches.5 Most notably, the dissent 

5 For example, the dissent relies on the Supreme Court’s recent 

decision in Pereida v. Wilkinson, 141 S. Ct. 754 (2021), for the 

proposition that “the threshold factual question is which acts formed the 

basis of the alien’s prior conviction. . . . Accordingly, the government 

may only deem Bogle removable after it has proven that the conviction 

itself, i.e.[,] Bogle’s plea, involved 30 grams of marijuana or more.” 

Dissent at 34 (quotation marks, citation, and alterations omitted). But in 

Pereida, the Court was applying the categorical approach, which 

“implicates two inquiries—one factual (what was [the petitioner’s] crime 

of conviction?), the other hypothetical (could someone commit that 

crime of conviction without [satisfying the INA’s offense 

requirement]?).” Pereida, 141 S. Ct. at 762. The Court had determined 

that only certain offenses covered by a divisible statute of conviction 

were categorical matches for the INA offense requirement at issue (crime 

involving moral turpitude), so the factual determination of which offense 

the petitioner stood convicted of was especially important. See id. at 

762–63. Here, in contrast, we know Bogle’s crime of conviction—

possession of more than one ounce of marijuana. Thus, having answered 

the “threshold question,” we can move on to the second inquiry, which 

under the circumstance-specific approach, is not whether the “conviction 

itself, i.e.[,] Bogle’s plea, involved 30 grams of marijuana or more”—it 

involved only an ounce or more—but whether the circumstances specific 

to this case show that Bogle possessed thirty grams of marijuana or more. 

Compare id. at 762, with Nijhawan, 557 U.S. at 32.

The dissent also relies on Moncrieffe v. Holder, 569 U.S. 184 

(2013), for the proposition that “[i]n evaluating Bogle’s conviction, 

precedent dictates that we must presume that the conviction rested upon 
BOGLE V. GARLAND 21

criticizes that “[n]othing in our record indicates that Bogle 

admitted or stipulated that a specific quantity of marijuana 

formed the basis of his only qualifying prior conviction, that 

evidence was presented to the Georgia court concerning the 

quantity of marijuana, or that the Georgia court made any 

finding as to a quantity of marijuana greater than an ounce.” 

Dissent at 33. Even assuming that to be true,6 Nijhawan 

expressly did not import into the circumstance-specific 

approach the modified categorical approach’s requirement 

that a “jury verdict, or a judge-approved equivalent, embody 

a determination” of the fact at issue. 557 U.S. at 41. Unlike 

the categorical or modified categorical approaches, the 

circumstance-specific approach by its very nature “permit[s 

a petitioner] to be deported on the basis of circumstances that 

were not before judicially determined to have been present 

nothing more than the least of the acts criminalized.” Dissent at 35

(emphasis added) (quotation marks, citation, and alteration omitted). 

Yet again, the dissent confuses the circumstance-specific approach with 

the categorical approach. The Court in Moncrieffe was applying the 

categorical approach and thus appropriately stated in full: “Because we 

examine what the state conviction necessarily involved, not the facts 

underlying the case, we must presume that the conviction rested upon 

nothing more than the least of the acts criminalized, and then determine 

whether even those acts are encompassed by the generic federal offense.” 

569 U.S. at 190–91 (emphasis added) (quotation marks, citation, and 

alteration omitted). Of course, this principle does not apply to the 

circumstance-specific approach, which is distinct from the categorical 

approach precisely because it requires us to examine not only the state 

conviction, but also the facts underlying the case. See Nijhawan, 

557 U.S. at 41–42.

6 As explained in detail in the fact section, Bogle never challenged 

the quantity of marijuana actually recovered, and in several parts of his 

testimony, he essentially admitted to it.
22 BOGLE V. GARLAND

and which he may not have had an opportunity, prior to 

conviction, to dispute.”7 Id. (emphasis omitted).

Of course, this does not mean that a petitioner does not 

have due process protections under the circumstancespecific approach. First, the Supreme Court still instructs 

that the circumstance-specific approach requires 

“fundamentally fair procedures, including procedures that 

give an alien a fair opportunity to dispute a Government 

claim.” Id. Here, the BIA’s reliance on the police report 

along with other evidence and testimony was not 

fundamentally unfair. Cf. Matter of Grijalva, 19 I. & N. 

Dec. at 722 (explaining that usage of a police report is 

fundamentally unfair if, for example, the petitioner “made 

statements involuntarily to the officers who arrested him, or 

[if] the police officers acted egregiously in seizing 

evidence”). Bogle had a fair opportunity (actually several 

such opportunities) to dispute the quantity of marijuana 

7 We did not hold otherwise in Fuentes v. Lynch, 788 F.3d 1177 (9th 

Cir. 2015) (per curiam). In Fuentes, the BIA had relied on (1) the 

petitioner’s indictment and judgment and (2) the petitioner’s presentence 

report (PSR) to conclude that the petitioner had conspired to launder 

more than $10,000, making him an aggravated felon. Id. at 1182–83. 

We held that it was an error for the BIA to rely on the indictment and 

judgment because the petitioner did not actually plead guilty to 

conspiring to launder more than $10,000, but that the error was harmless 

because the PSR independently established the monetary threshold by 

clear and convincing evidence. Id. Thus, Fuentes stands for the simple 

proposition that where, as here, a petitioner’s judgment of conviction 

does not itself establish the fact at issue, courts may look to other 

documents to determine the circumstances particular to the petitioner’s 

offense. And although the PSR in Fuentes stated that the petitioner had 

stipulated to the amount of laundered funds recorded therein, id. at 1183, 

a stipulation is not necessary for a document to satisfy the government’s 

burden of clear and convincing evidence, see, e.g., Cardoso de Flores, 

915 F.3d at 386.
BOGLE V. GARLAND 23

found in the car he was driving, but he chose not to do so. 

See Nijhawan, 557 U.S. at 41; Arias-Minaya v. Holder, 

779 F.3d 49, 54 (1st Cir. 2015) (“As long as the nature and 

stage of the proceedings are taken into account . . . the case 

law does not categorically preclude the agency from 

considering a police report simply because the arrest detailed 

therein has not resulted in a conviction.”).

Second, even under the circumstance-specific approach, 

the government still must prove to the IJ and BIA that the 

quantity of marijuana exceeded thirty grams by clear and 

convincing evidence.8 Although this is an “exacting 

standard,” Dissent at 33, the circumstances specific to this 

case can easily satisfy the burden. At the very least, we do 

not “find that any rational trier of fact would be compelled

to conclude that the proof did not rise to the level of clear 

and convincing evidence,” thus requiring reversal under our 

review for substantial evidence. Barikyan v. Barr, 917 F.3d 

142, 146 (2d Cir. 2019) (emphasis added) (citation omitted); 

see Nakamoto v. Ashcroft, 363 F.3d 874, 881–82 (9th Cir. 

2004) (same).9

8 The dissent states that “[t]o affirm the BIA on this record would 

allow immigration authorities to . . . disregard Bogle’s presumption of 

innocence as to any conduct beyond the scope of his plea.” Dissent at 46. 

However, Nijhawan reminds us that “a deportation proceeding is a civil 

proceeding in which the Government does not have to prove its claim 

‘beyond a reasonable doubt,’” but by clear and convincing evidence. 

557 U.S. at 42. Therefore, under the circumstance-specific approach, the 

government may deport aliens “on the basis of circumstances that were 

not before judicially determined to have been present” beyond a 

reasonable doubt without undermining a petitioner’s presumption of 

innocence. Id. at 41–42 (emphasis omitted).

9 We are not reviewing for clear and convincing evidence but are 

rather reviewing whether substantial evidence supports the BIA’s factual 
24 BOGLE V. GARLAND

As a starting point, we agree with the IJ and the BIA that 

the police report here is “probative” and “reliable.” Even if 

unpublished decisions by other circuits were binding on this 

court, the unpublished Tenth Circuit decision cited by the 

dissent states that “certain features of the police report 

itself—such as its level of detail, internal consistency, and 

quality” are relevant to “the probable accuracy of the 

relevant information contained therein.” United States v. 

Padilla, 793 F. App’x 749, 757 (10th Cir. 2019). The police 

report here is detailed, is internally consistent, and records 

observations of fact rather than the officers’ conclusions. It 

states that the “green leafy material” found in the three bags 

“tested positive for marijuana,” and provides the precise 

weight of each bag: 446.6 grams, 450.5 grams, and 438.8 

grams. Given that Bogle did not specifically contest the 

measurements of quantity in the report, holding such a report 

to be insufficient would be essentially the same as holding 

that no police report is sufficient, standing alone, to 

demonstrate that a petitioner possessed more than thirty 

grams of marijuana.

We will not adopt such a categorical rule,10 as holding 

that no police report could ever be sufficient, standing alone, 

determination that the government has proven the quantity of marijuana 

by clear and convincing evidence—an important distinction. See 

Nakamoto, 363 F.3d at 881–82.

10 The dissent joins us “in rejecting a categorical rule that a police 

report can never, alone, be sufficient to meet the government’s burden in 

removal proceedings.” Dissent at 37 (footnote omitted). But the dissent 

insists that this police report is not enough because it “contains no 

information indicating that Bogle was aware there was marijuana in the 

compartment in the trunk before it was uncovered by officers.” Dissent 

at 39. That is incorrect. First, as described above, the police report offers 

direct evidence of Bogle’s knowledge by describing his outright 
BOGLE V. GARLAND 25

would be directly contrary to the Supreme Court’s 

instruction to consider the particulars of each case (though 

we continue to emphasize that the police report did not stand 

alone here). Adopting such a rule would also impose a 

higher evidentiary standard for removals under 

§ 1227(a)(2)(B)(i) than for certain criminal convictions, 

which must be proven beyond a reasonable doubt. In United 

States v. Irion, 482 F.2d 1240 (9th Cir. 1973), cert. denied, 

414 U.S. 1026, we held that a “police report, the only 

evidence at the trial,” was sufficient to uphold defendants’ 

convictions for importation and possession of marijuana 

confession “that he knew that drugs [were] in the car and only did it to 

make some extra money.” It would, of course, be unlikely that Bogle 

would be “mak[ing] some extra money” by transporting the dissent’s 

hypothetical twenty-nine grams of marijuana as opposed to the actual 

1335 grams recovered from the car Bogle was driving. Second, the 

report offers circumstantial evidence of Bogle’s knowledge, including 

that there was a “very strong odor of marijuana coming from inside of 

the car,” that Bogle was driving a rental car in another person’s name 

“for a friend,” and that he was “extremely nervous and breathing heavy 

. . . [with] his carotid artery pulsating on the right side of his neck.” 

Although Bogle could have been “extremely nervous” for reasons other 

than his knowledge that the car contained three pounds of marijuana (as 

opposed to twenty-nine grams), the police report’s description of his 

nervous reaction is hardly “no information” indicating Bogle’s 

awareness of the marijuana. Dissent at 39.

The dissent also complains that the report is uncorroborated and thus 

incomplete—for instance, because it is not accompanied by photos of the 

marijuana (which photos, of course, would not even address the dissent’s 

chief concern about the lack of proof of Bogle’s knowledge). Dissent 

at 39–40. But the conclusion that a police report is insufficient because

it is uncorroborated is synonymous with saying that a police report is 

insufficient evidence because it is the only evidence—the categorical 

rule that we and the dissent both reject. This police report is detailed and 

explicit, and records observations of fact rather than mere conclusions. 

Thus, the dissent’s conclusion that this police report is insufficient is 

tantamount to saying that no police report can ever be sufficient.
26 BOGLE V. GARLAND

with intent to distribute. Id. at 1245 (emphasis added) 

(quotation marks and footnote omitted). “[I]n view of [the 

police report’s] unchallenged and uncontradicted testimony 

that the substance was in fact marihuana” and because “there 

was no suggestion of any question regarding the nature of 

the substance” until the “issue was first raised on appeal,” 

the defendants’ “untimely challenge . . . to the sufficiency of 

the evidence” necessarily failed. Id. (emphasis added).

The same logic should apply to Bogle, who, as noted, has 

never disputed the police report’s record of the quantity of 

marijuana found in his car, even on appeal. In fact, Bogle’s 

failure to challenge that aspect of the police report is just one 

of the many circumstances we consider in addition to the 

police report itself.

In looking at whether proceedings were fundamentally

fair for purposes of the circumstance-specific approach, 

courts may consider whether a petitioner had “ample 

opportunity to challenge” the evidence against him but did 

not. Fan Wang v. Att’y Gen., 898 F.3d 341, 350 (3d Cir. 

2018); see also United States v. Gonzalez-Medina, 757 F.3d 

425, 432 (5th Cir. 2014); Hamilton v. Holder, 584 F.3d 1284, 

1287 (10th Cir. 2009). We thus consider Bogle’s failure to 

ever challenge the amount of marijuana recorded in the 

police report, despite his adamant protests that he did not 

know there was marijuana in the vehicle.

Courts may also consider whether there was an “absence 

of any conflicting evidence.” Nijhawan, 557 U.S. at 43; see 

also Kaplun v. Att’y Gen., 602 F.3d 260, 266 (3d Cir. 2010). 

We thus consider Bogle’s reliance on the theoretical 

argument that he could have possessed somewhere between 

28.36 and thirty grams, rather than any offer of proof that he 

did possess such an amount.
BOGLE V. GARLAND 27

Courts may also consider whether the petitioner admitted 

the evidence against him. See Bianco v. Holder, 624 F.3d 

265, 273 (5th Cir. 2010). We thus consider Bogle’s 

testimony in 2017 that just one of the bags recovered by the 

police contained “[n]othing more than say 40, 40 grams,” as 

well as the following admission from his testimony in 2019: 

“I admit there was marijuana in the car, and I admit to it but 

did I knowingly get in the car and drove it knowing that 

marijuana was there, no, I did not. I just did not, Your 

Honor.”

Finally, courts may consider whether the reported 

amount exceeded the statutory cutoff by a large or small 

degree. See Barikyan, 917 F.3d at 147. We thus consider 

the fact that the police report stated there were more than 

1300 grams of marijuana in Bogle’s car—1270 grams above 

the personal-use exception’s limit.

Viewing those circumstances together, the evidence 

here, including the police report, clearly establishes that 

Bogle possessed more than thirty grams of marijuana. Only 

in an Alice in Wonderland world11 could we overturn the IJ 

and BIA determinations, on the ground that the police report

alone is not clear and convincing evidence, all the while 

ignoring the other evidence and specific circumstances in the 

record—including that Bogle never challenged the quantity 

11 See United States v. Battle, 927 F.3d 160, 163 n.2 (4th Cir. 2019) 

(describing the categorical approach as an “Alice in Wonderland path” 

because under that “absurd” approach, we “must look not to what 

[petitioner] actually did” but instead, “must turn away from the facts of 

this case and consider . . . situations that have nothing to do with 

[petitioner]”). Unlike the Alice in Wonderland path of the categorical 

approach, we are supposed to look to what Bogle actually did under the 

circumstance-specific approach.
28 BOGLE V. GARLAND

of marijuana actually recovered, and indeed, essentially 

admitted to it.

Nonetheless, the dissent urges us to adopt that 

counterintuitive result under the hypothetical scenario that 

Bogle actually did have a strong case that he did not know 

about the marijuana in the trunk.12 Thus, the dissent argues, 

“[o]ne plausible reading of the record is that the prosecutor 

recognized that Bogle had a potentially valid defense to any 

charge related to the marijuana in the trunk, and exercised 

prosecutorial discretion to obtain a plea to something less 

than that reliant on the quantity of marijuana found in the 

compartment in the trunk”—possession, rather than 

possession with intent to distribute. Dissent at 43, 49 n.15. 

After all, the dissent notes, “Bogle admits and the police 

report itself suggests that there was some marijuana in the 

cabin. The officer noted leafy flakes on the console, and the 

odor of marijuana.” Dissent at 43 n.8.

It is unclear where in the record the dissent finds this 

compelling story of the innocent drug user who knowingly 

possessed between 28.36 and thirty grams in the passenger 

compartment of the vehicle he was driving, all the while 

blissfully ignorant of the 47.12 ounces of marijuana in the 

vehicle’s trunk. And certainly, Bogle has never suggested 

that this hypothetical came to pass in his case. See Barikyan, 

917 F.3d at 146 (requiring petitioner to “offer[] . . . evidence 

that [proposed] hypotheticals came to pass in his case” even 

where the government had the burden of proof by clear and 

convincing evidence). Therefore, although the record 

supports that there were flakes of marijuana in the passenger 

12 Making him the victim of not one but two run-ins with law 

enforcement in which he was transporting somebody else’s marijuana. 

See supra n.1.
BOGLE V. GARLAND 29

compartment, we will not invent 28.36 grams of flakes (but 

no more than thirty) to allow Bogle to avoid the immigration 

consequences of his Georgia conviction.13 Where, as here, 

“the record before us contains no plea agreement, and 

certainly not one which explicitly spells out the [quantity of 

marijuana] to which [Bogle] pleaded guilty,” we will not 

assume that Bogle pleaded guilty to possessing some lower 

quantity of marijuana as “part of an explicit bargain between 

[him] and the Government” merely because “the 

Government could have charged [him] with a [more severe] 

crime[] but did not.” Ku v. Att’y Gen., 912 F.3d 133, 142 

(3d Cir. 2019) (emphasis added). “[P]ure conjecture” cannot 

sever the tie between Bogle’s conviction and the quantity of 

marijuana recorded in the police report, “[a]bsent a clear and 

unmistakable indication of [the government’s stipulation to 

some lesser quantity] in a written plea agreement.”14 Id.; see 

13 According to at least one study, there are approximately 

89 average joints in one ounce of marijuana. How Much Weed Is in a 

Joint? Pot Experts Have a New Estimate, N.Y. Times (July 14, 2016), 

https://www.nytimes.com/2016/07/15/science/how-much-weed-is-in-ajoint-pot-experts-have-a-new-estimate.html.

14 The dissent’s attempts to distinguish Ku are unavailing. First, the 

dissent highlights that in Ku, there was a judgment of conviction that 

included a total loss determination well in excess of the relevant $10,000 

threshold, as well as a restitution order in that amount. Dissent at 47–48. 

Again, the dissent confuses the modified categorical approach with the 

circumstance-specific approach, which does not require a “jury verdict, 

or a judge-approved equivalent, [to] embody a determination” of the fact 

at issue, and which “permit[s a petitioner] to be deported on the basis of 

circumstances that were not before judicially determined to have been 

present.” Nijhawan, 557 U.S. at 41 (emphasis omitted).

Second, the dissent suggests that Bogle’s invented plea agreement—

in which Bogle was convicted of 28.36 grams but not more than thirty—

is not “pure conjecture” because it is “supported both by [Bogle’s] 

assertion of a potentially valid affirmative defense, and the fact that the 
30 BOGLE V. GARLAND

Nijhawan, 557 U.S. at 42 (“[A]mount must be tethered to 

offense of conviction; amount cannot be based on acquitted 

or dismissed counts or general conduct[.]” (citation 

omitted)).

To hold otherwise would be both legally erroneous and 

practically unjust. It would come at the expense of the 

immigration system’s search for truth. See Iliev v. INS, 

127 F.3d 638, 643 (7th Cir. 1997) (“The Immigration Judge 

has broad discretion . . . in order to ascertain the truth.”); see 

also Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998) 

(same). In so doing, it would bring us back to the longdisfavored “sporting theory” of justice, see Brady v. 

Maryland, 373 U.S. 83, 90–91 (1963), which causes even 

prosecutor ultimately reconsidered, and dropped, the original higher 

charge.” Dissent at 48–49. That is wrong too. Ku held that “absent a 

clear and unmistakable indication of [the amount at issue] in a written 

plea agreement,” or any other evidence indicating that a petitioner 

pleaded to a lesser amount than the amount clearly established by the 

government’s evidence, a court should not assume that a petitioner 

pleaded guilty to some lesser amount based only “on the fact that the 

Government could have charged [the petitioner] with [additional] crimes 

but did not.” 912 F.3d at 142 (contrasting Alaka v. Att’y Gen., 456 F.3d 

88 (3d Cir.), as amended (Aug. 23, 2006), and overruled by BastardoVale v. Att’y Gen., 934 F.3d 255 (3d Cir. 2019) (en banc), on the grounds 

that, in Alaka, the precise amount at issue was specified in a plea 

agreement). Here, Bogle’s “assertion of a potentially valid . . . defense” 

is not a “clear and unmistakable indication” that he pleaded guilty to 

possessing something less than thirty grams of marijuana, nor was his 

current supposed view of the facts incorporated into a written plea 

agreement. Therefore, because neither he nor the dissent points to any 

other evidence indicating that he pleaded guilty to a lesser amount of 

marijuana than the amount clearly established by the government’s 

evidence, we cannot assume that Bogle pleaded guilty to less than thirty 

grams of marijuana based only on “the fact that the Government could 

have charged”—and initially did charge—additional crimes but 

ultimately did not. Id.
BOGLE V. GARLAND 31

“the most conscientious judge to feel that he is merely to 

decide the contest . . . according to the rules of the game, not 

to search independently for truth and justice,” Roscoe 

Pound, The Causes of Popular Dissatisfaction with the 

Administration of Justice, 29 Ann. Rep. Am. Bar Ass’n 395, 

405 (1906). And it would come “at the potential cost of 

substantial expenditures of agency time,” Communist Party 

of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 31 

(1961), and at a cost to the rule of law itself, see Pound, 

supra, at 406 (“If the law is a mere game, neither the players 

who take part in it nor the public who witness it can be 

expected to yield to its spirit when their interests are served 

by evading it.”).

We will not condone such a result. Today’s appeal is not 

a game, and we search for the truth. Here that means 

carefully evaluating the circumstances specific to Bogle’s 

case, and that evaluation leads to only one conclusion: 

Bogle’s conviction involved more than thirty grams of 

marijuana.

Accordingly, we will not grant review of Bogle’s order 

of removal for committing a controlled substance offense. 

Nor will we grant review of the IJ’s denial of Bogle’s 

application for cancellation of removal. Barring a colorable 
32 BOGLE V. GARLAND

constitutional claim15 or question of law,16 8 U.S.C. 

§ 1252(a)(2)(D), we lack jurisdiction to review such a 

discretionary decision, id. § 1252(a)(2)(B)(i). The 

temporary stay of removal remains in place until issuance of 

the mandate. The motion for a stay of removal is otherwise 

denied.

PETITION DENIED.

PEARSON, District Judge, dissenting:

I join my colleagues in concluding that Bogle’s 

conditional discharge was a conviction under the INA, that 

the circumstance-specific approach applies to the thirtygram limit of the personal use exception, and in rejecting a 

categorical rule that a police report, alone, can never be 

sufficient to meet the government’s burden of clear and 

convincing evidence. Our agreement ends there. I do not 

15 Bogle seems to make a procedural due process argument based on 

the IJ’s reliance on the police reports from both Arizona and Georgia, 

but the claim is not colorable. “An alien’s right to procedural due process 

is violated only if [1] the proceeding was so fundamentally unfair that 

the alien was prevented from reasonably presenting his case, and [2] the 

alien proves that the alleged violation prejudiced his or her interests.” 

Mendez-Garcia v. Lynch, 840 F.3d 655, 665 (9th Cir. 2016) (quotation 

marks and citation omitted). As already explained, it was not 

fundamentally unfair for the IJ to consider the police report.

16 Bogle contends that the IJ erred by applying the stop-time rule to 

his case, but the claim is not colorable. Bogle’s argument relies only on 

our holding in Nguyen v. Sessions, 901 F.3d 1093 (9th Cir. 2018), which 

was abrogated by the Supreme Court’s subsequent holding in Barton v. 

Barr, 140 S. Ct. 1442 (2020).
BOGLE V. GARLAND 33

agree that the police report in this case satisfies the 

government’s burden of clear and convincing evidence.

The circumstance-specific approach permits courts to 

probe the factual underpinnings of a prior qualifying 

conviction. It does not relieve the government of its 

evidentiary burden when an alien admits to earlier, 

unrelated, criminal conduct, nor does it permit removal 

based on intuition and guesswork. Nothing in our record 

indicates that Bogle admitted or stipulated that a specific 

quantity of marijuana formed the basis of his only qualifying 

prior conviction, that evidence was presented to the Georgia 

court concerning the quantity of marijuana, or that the 

Georgia court made any finding as to a quantity of marijuana 

greater than an ounce. The majority’s decision regarding the 

government’s satisfaction of its evidentiary burden is belied 

by the record and contrary to established precedent. 

Therefore, I respectfully dissent.

I. The Government’s Burden

To prove that Bogle’s conviction was one for possessing 

more than 30 grams of marijuana, the government must 

present clear and convincing evidence, an exacting standard. 

8 U.S.C. § 1229a(c)(3)(A); Cortez-Acosta v. INS, 234 F.3d 

476, 480–81 (9th Cir. 2000) (“very demanding”); see also

Matter of Davey, 26 I. & N. Dec. at 41 (“[A]n inconclusive 

record is not sufficient.”). Even if the evidence suggests that 

Bogle probably possessed more than 30 grams, “‘probably’ 

is a lower standard than ‘clear, unequivocal, and 

convincing.’” Cortez-Acosta, 234 F.3d at 482 (citations 

omitted). “[W]e affirm only if ‘the [agency] has successfully 

carried this heavy burden of clear, unequivocal, and 

convincing evidence.’” Hernandez-Guadarrama v. 

Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005) (citations 

omitted, emphasis added) (alteration in original).
34 BOGLE V. GARLAND

The Supreme Court recently reminded us that “like any 

other fact, the party who bears the burden of proving [the 

crime of conviction in immigration proceedings] bears the 

risks associated with failing to do so.” Pereida v. Wilkinson, 

141 S. Ct. 754, 765 (2021). Because courts resolve factual 

disputes regarding the crime of conviction “only by 

reference to evidence, . . . [the] statutory allocation of the 

burden of proof will sometimes matter a great deal.” Id. at 

764.1

The question on which the government bears the burden 

of clear and convincing evidence is not, as the majority 

implies, how much marijuana was in the rental car. Rather, 

“the threshold factual question [is] which [acts] formed the 

basis of the alien’s prior conviction.” Pereida, 141 S. Ct. at 

765 (some emphasis added).2 The drug quantity at issue 

1 Here, the government bears a higher burden than the alien in 

Pereida — clear and convincing rather than a mere preponderance. 

Pereida addressed an alien’s burden to demonstrate eligibility for 

cancellation of a concededly proper order of removal, subject to a 

preponderance of the evidence standard. 8 U.S.C. § 1229a(c)(4)(A)

(“An alien applying for relief or protection from removal has the burden 

of proof[.]”); §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I) (A noncitizen is 

ineligible for this discretionary relief, however, if, among other things, 

he has “been convicted of ” a “crime involving moral turpitude.”); 8 

C.F.R. § 1240.8(d) (If the evidence suggests that a ground “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.”). Unlike Pereida, Bogle challenges whether the 

government has proven he is removable.

2 See also Nijhawan v. Holder, 557 U.S. 29, 32 (2009) (“[I]n order 

to determine whether a prior conviction is for the kind of offense 

described, the immigration judge must look to the” circumstances in 

which an offender committed the crime.) (emphasis added); Medina v. 

Ashcroft, 393 F.3d 1063, 1065 n.5 (9th Cir. 2005) (“The government 
BOGLE V. GARLAND 35

“must be tied to the specific counts covered by the 

conviction.” Nijhawan, 557 U.S. at 42 (citations and 

quotation marks omitted). In determining a quantity to be 

proven under the circumstance-specific approach, the 

“amount must be tethered to offense of conviction[,]” and 

“cannot be based on acquitted or dismissed counts or general 

conduct[.]” Id. (quoting Alaka v. Att’y Gen. of the United 

States, 456 F.3d 88, 107 (3rd Cir. 2006), overruled on other 

grounds by Bastardo-Vale v. Att’y Gen. United States of 

America, 934 F.3d 255 (3rd Cir. 2019)).

Accordingly, the government may only deem Bogle 

removable after it has proven that the conviction itself, i.e.

Bogle’s plea, involved 30 grams of marijuana or more.

In evaluating Bogle’s conviction, precedent dictates that 

we “must presume that the conviction rested upon nothing 

more than the least of the acts criminalized[.]” Moncrieffe 

v. Holder, 569 U.S. 184, 190–91 (2013) (citation and 

quotation marks omitted).3

 We are compelled to faithfully 

follow precedent. In doing so, we must conclude that Bogle 

is removable only if the government has met its burden of 

bears the burden of establishing that the alien’s conviction does not fall 

within the [personal-use exception].”) (emphasis added).

3 The majority opines that this is only true in cases applying the 

categorical approach. Opinion at 20–22 n.5. While this concept 

originated in cases applying the categorical approach, its application is 

not as limited as the majority suggests. The categorial approach makes 

such a presumption irrebuttable. The modified categorial and 

circumstance-specific approaches provide frameworks under which the 

party with the burden of proof can move the needle. Certainly, the 

majority does not dispute that proof of conviction, alone, is proof only 

of the least of the acts criminalized. Opinion at 22 n.7. It, however, has 

provided no authority permitting it to begin its analysis at some alternate 

weight.
36 BOGLE V. GARLAND

proof. On the record before us, we begin that analysis with 

the presumption that Bogle’s conviction is for less than 

30 grams. Id. “Since the Government must show the 

[quantity] by clear and convincing evidence, uncertainties 

caused by the passage of time are likely to count in the 

alien’s favor.” Nijhawan, 557 U.S. at 42; see Pereida, 

141 S. Ct. at 765.

II. Relevant Facts

According to the police report, Bogle was arrested while 

he was driving a rental car that he did not rent and was not 

authorized to drive. Bogle told the officer he had been hired, 

and given use of the car, to pick up a female companion of 

one of his friends. The officer claims he smelled marijuana 

inside the vehicle, and then conducted a search. The officer 

states that he “saw several green leafy flakes lying on the 

driver’s seat and console[,]” and proceeded to search the 

trunk, where he found three gallon-sized Ziploc bags “in the 

firewell of the vehicle located behind the inner carpet lining” 

full of material that later tested positive for marijuana.

It is those three bags, alone, that make up the 2.94 pounds 

of marijuana the government and majority contend form the 

basis for Bogle’s qualifying conviction. The police report 

does not indicate whether a more thorough search of the 

car’s cabin was conducted or whether the “leafy flakes” in 

the passenger compartment may have resulted from 

consumption prior to the officer’s arrival. Although the 

record contains some conflicting information on this point, 

Bogle has contended throughout years of protracted 

proceedings that he was unaware that there were three large 

bags of marijuana in the trunk. Bogle did acknowledge that 

there was a smaller bag of marijuana in the car, weighing no 

more than 40 grams. This, however, is not documented in 

the police report.
BOGLE V. GARLAND 37

The majority opinion regarding the quantity involved 

rests on two key features of the record: the police report, and 

Bogle’s failure to challenge that there was about three 

pounds of marijuana in the trunk of the car. Neither of these 

factors, separately or taken together, supports the conclusion 

that the government has proven Bogle’s conviction falls 

outside the personal use exception.

III. The Police Report

I join my colleagues in rejecting a categorical rule that a 

police report can never, alone,4 be sufficient to meet the 

government’s burden in removal proceedings.

4 I disagree with the majority, however, that such a report could be

sufficient because, once, nearly 50 years ago, “we held that a ‘police 

report, the only evidence at trial,’ was sufficient to uphold defendants’ 

convictions for importation and possession of marijuana with intent to 

distribute.” Opinion at 25–26 (quoting United States v. Irion, 482 F.2d 

1240, 1245 (9th Cir. 1973) (emphasis added by majority)). To begin 

with, the quote is misleading. Irion was a bench trial, the police officers 

had previously testified at a suppression hearing, and the transcript of

that hearing, as well as evidence submitted there, were discussed by the 

parties and considered by the court, in addition to the police report. 

482 F.2d at 1246 n.13. The majority uses its interpretation of Irion to 

argue that a categorical rule would “impose a higher evidentiary standard 

for removals . . . than for certain criminal convictions, which must be 

proven beyond a reasonable doubt.” Opinion at 25. Foremost, this 

argument reveals a flaw in the majority’s logic — it is not that 

immigration officials must demonstrate factual guilt by clear and 

convincing evidence. Rather, they must prove the circumstances of a 

conviction by that standard. See supra Section I. Furthermore, the 

majority fails to note that the police report in Irion was found to be 

sufficient evidence because it was offered by stipulation, in lieu of 

officer testimony. Irion, 482 F.2d at 1245 n.10. Had the sufficiency of 

the report been challenged at the close of evidence, the government 

“would no doubt have been permitted to reopen its case and call the 

chemist as a witness or introduce his written report into evidence[.]” Id.
38 BOGLE V. GARLAND

When evaluating police reports, a case-by-case analysis 

is the appropriate approach. United States v. Padilla, 793 F. 

App’x 749, 757 (10th Cir. 2019). An individualized analysis 

allows the immigration judge, or a court, to independently 

assess a report’s probative value, whether its admission 

would be fundamentally fair, and what weight to ascribe an 

admitted report: 

[B]ecause police reports—as a category of 

evidence—are not inherently reliable, it 

follows that courts cannot resolve a disputed 

[] fact simply by assuming that information 

contained in a police report meets the dueprocess “reliability floor.” [United States v. 

Ruby, 706 F.3d 1221, 1229 (10th Cir. 2013).] 

Instead, [] courts must make a case-by-case 

reliability determination. In so doing, they 

may examine the record, as a whole, to 

discern whether there is additional evidence 

to corroborate sufficiently the relevant 

information that the police report is being 

offered to establish. They also may find that 

certain features of the police report itself—

such as its level of detail, internal 

consistency, and quality—independently

support the probable accuracy of the relevant 

information contained therein.

at 1245. Absent an enforceable stipulation, such a trial tactic would not 

conform with the Federal Rules of Evidence, nor any rational

understanding of the Confrontation Clause. See, e.g., Bullcoming v. New 

Mexico, 564 U.S. 647, 660 (2011); Davis v. Washington, 547 U.S. 813 

(2006).
BOGLE V. GARLAND 39

Id.

In its evaluation of the police report, the majority 

conflates the standards for admission of evidence in an 

immigration proceeding with the government’s ultimate 

burden of proof. While the admission and limited 

consideration of the police report may not have been 

“fundamentally unfair,” the uncorroborated and unverified 

police report does not meet the government’s burden of 

“clear and convincing” evidence here. As discussed below, 

Bogle has asserted the defense of lack of knowledge. The 

report contains no information indicating that Bogle was 

aware there was marijuana in the compartment in the trunk 

before it was uncovered by officers. There are also material 

discrepancies between the crimes for which Bogle was 

arrested and the charge to which he ultimately pled guilty, 

calling the report’s probative value into question.

At best, the police report is incomplete. It mentions a 

drug quantity without corroboration. See Matter of Grijalva, 

19 I. & N. Dec. at 722–23 (noting that the laboratory tested 

the substance and verified it was marijuana); Matter of 

Higgs, 2012 WL 3276581, at *2 (B.I.A. July 24, 2012) 

(unpublished) (“[T]he Chemistry Laboratory Report only 

verified . . . 15.77 grams of marijuana, having tested only 

5 of 38 bags . . . . [I]t is the DHS’s burden to establish by 

clear and convincing evidence that the respondent is 

removable as charged.”).

Additionally, although the report indicates that 

photographs were taken of the bags of marijuana, including 

where and how they had been discovered, the government 

did not produce those photographs. This alone is enough to 

cast shade where there should be light. The incompleteness 

of the report detracts from its reliability, casts doubt on its 

credibility, and refutes the majority’s belief that it is 
40 BOGLE V. GARLAND

sufficiently detailed and reliable to obviously represent the 

factual circumstances of Bogle’s final plea. Muniz v. Amec 

Const. Mgmt., Inc., 623 F.3d 1290, 1297 (9th Cir. 2010) 

(incomplete nature of records detracted from credibility).

Here, we are left with only the police report’s 

uncorroborated rendition of the quantity of the drugs, and 

where and how the drugs were located in the rental car. 

Those reliability deficiencies might be surmountable, as the 

majority concludes, if the question before us were whether 

the car physically contained more than 30 grams of 

marijuana. The deficiencies, however, pale in comparison 

to the report’s lack of probative value as to the only question 

actually before the BIA or the Court: To what crime did 

Bogle plead guilty? The ultimate failing in the government’s 

evidence is that it does not answer the question of what crime 

Bogle was convicted. The crime, Bogle argues,5 is different 

from what he was arrested for, because he lacked sufficient 

knowledge—mens rea—to have been convicted of an 

offense involving the quantify of marijuana in the trunk’s 

compartment.

The Georgia court’s records documenting Bogle’s 

conviction do not tie the bags of marijuana found in the trunk 

to Bogle’s conviction. Unlike the alien in Nijhawan who 

stipulated at sentencing that the losses were well over 

$10,000, 557 U.S. at 42–43, Bogle did not stipulate to 

possessing more than 30 grams of marijuana. There is no 

other “earlier sentencing-related material” like the PreSentence Report (“PSR”), relied on in Fuentes. 788 F.3d at 

5 Below, I address the frequency with which Bogle has made this 

argument.
BOGLE V. GARLAND 41

1883 (“[T]he PSR states that the plea agreement stipulated 

to an amount of funds laundered of ‘more than $70,000.’”).

This Court’s prior analysis of the evidentiary value of the 

indictment as compared to the PSR in Fuentes is instructive. 

There, the BIA initially relied on the factual description of 

overt acts that were incorporated into a conspiracy charge to 

which the alien had pled guilty. Fuentes, 788 F.3d at 1182. 

This Court intoned that, “to sustain a [money laundering] 

conviction, an overt act need not be proved, and overt acts 

alleged in a money laundering conspiracy indictment are 

‘not admitted by a plea.’” Id. Thus, this acknowledged that 

“a guilty plea only ‘admits the facts constituting the elements 

of the charge.’” Id. (quoting United States v. Cazares, 

121 F.3d 1241, 1246 (9th Cir. 1997)).

In Fuentes, because facts incorporated into the 

indictment were not an element of the underlying offense to 

which the alien pled guilty, this Court concluded that “[t]he 

BIA’s reliance on these counts incorporated by reference 

was not fundamentally fair and does not establish by clear 

and convincing evidence, as required under Nijhawan to 

prove specific circumstances” to which the alien pled guilty. 

Fuentes, 788 F.3d at 1182. The Court went on to excuse the 

BIA’s error as harmless given the contents of the PSR. Id. 

The PSR described the plea agreement as containing a 

stipulation as to the amount laundered. Id. The Court 

concluded that the BIA could rely on the PSR, and that it was 

both fundamentally fair evidence, and clear and convincing 

evidence of the amount laundered.6 Id.

6 It is worth noting that, in the normal course, a PSR is tested. 

Defendants have a right to object, and a court decides where the truth 

lies by a preponderance of evidence. See Fed. R. Crim. P. 32(f).
42 BOGLE V. GARLAND

The police report in this case suffers from even greater 

defects than the indictment in Fuentes, which this Court 

rejected as being neither fundamentally fair, nor clear and 

convincing evidence. 788 F.3d at 1182. Reliance on such 

records makes a mockery of the “fundamentally fair 

procedures” anticipated by immigration statutes and relieves 

the government of its obligation to meet its “‘clear and 

convincing’ standard.” Nijhawan, 557 U.S at 41–42 

(quoting 8 U.S.C. 1129a(c)(3)(A)); see Fuentes v. Lynch, 

788 F.3d 1177, 1182 (9th Cir. 2015).

Here, again, there is no indication that the police report 

was a part of the factual basis for Bogle’s guilty plea. Bogle 

was charged with two crimes: possession of an ounce or 

more of marijuana, and possession with intent to distribute. 

He pled guilty to possessing an ounce or more of marijuana. 

The possession with intent to distribute was dismissed, 

“NOL PROS[d.]”7

 That dismissed charge is the only charge 

Bogle faced that would be consistent with the quantity of 

marijuana found in the trunk. The dismissal of that charge 

strongly suggests that the marijuana in the trunk did not form 

the factual basis for Bogle’s plea of guilty, and creates 

significant ambiguity as to whether he pled guilty to 

possession of more or less than 30 grams.

IV. Bogle’s Knowledge

Bogle’s knowledge of the existence of the drugs, and his 

intent regarding them, would have been a critical element of 

any underlying conviction the prosecution hoped to obtain:

7 Nolle Proseuied is Latin for “we shall no longer prosecute.” 

https://www.law.cornell.edu/wex/nol_pros; https://www.law.cornell.ed

u/wex/nolle_prosequi (last visited June 17, 2021).
BOGLE V. GARLAND 43

In a drug possession case based upon 

circumstantial evidence, the State must 

adduce evidence establishing a meaningful 

connection between the defendant and the 

drugs. Mere presence, without proof of 

participation, is insufficient to support a 

conviction. Rather, the state must show that 

the defendant had the power and intent to 

exercise control over the drugs.

Wright v. State, 690 S.E.2d 654 (Ga. Ct. App. 2010) 

(citations and quotation marks omitted, emphasis added).

One plausible reading of the record is that the prosecutor 

recognized that Bogle had a potentially valid defense to any 

charge related to the marijuana in the trunk, and exercised 

prosecutorial discretion to obtain a plea to something less 

than that reliant on the quantity of marijuana found in the 

compartment in the trunk.8 It is not Bogle’s burden, of 

course, to prove that the compromise struck was specifically 

to an amount between 28.36 and 30 grams, it is the 

government’s burden to prove that the compromise was to 

8 Bogle admits and the police report itself suggests that there was 

some marijuana in the cabin. The officer noted leafy flakes on the 

console, and the odor of marijuana. Does the majority assume the officer 

was able to smell the contents of sealed bags in the sealed compartment 

of the closed trunk? The record contains no findings on that issue. In 

the context of criminal suppressions, at least one court within this Circuit 

has found that “while the fact that [an officer] ‘detected the smell of 

marijuana from the passenger compartment . . . certainly established 

probable cause to believe that contraband was stored in the passenger 

compartment, the odor did not raise a fair probability that additional 

evidence would be uncovered in the trunk, let alone the [sealed 

container] in the trunk.’” United States v. Chavez, No. 15CR285LHK, 

2018 WL 4207350, at *7 (N.D. Cal. Sept. 4, 2018) (quoting an earlier 

order in the same case).
44 BOGLE V. GARLAND

some amount in excess of 30 — and for this Court to find 

that substantial evidence supports the BIA’s corresponding 

conclusion. While Bogle was initially charged with an 

offense consistent with the three bags, ultimately the 

prosecutor, looking at all the evidence, made the decision 

that the only charge worthy of pursuit was one which did not 

necessarily involve possession above the 30-gram threshold.

V. Bogle’s Plea and Conviction

I will not join my colleagues in ignoring an element of a 

crime for which they conclude Bogle was convicted, 

knowledge of possession of three gallon-sized bags of 

marijuana. Nor can I support the majority’s assumption that 

the prosecutor’s decision to drop the higher charge is not 

relevant to our analysis. Indeed, had it chosen to do so, the 

prosecution could have sought to prove intent to distribute 

based on the weight of the marijuana found in the trunk 

alone.9

The government urges the Court to consider that, as a 

practical matter, the evidence required to meet its burden 

may be challenging to obtain given that the plea bargaining 

process can be opaque: the “necessity” of ensuring Bogle 

pled guilty to the more severe charge “would be lost upon 

prosecutors who make charging decisions based on any 

number of factors.” The majority appears to agree, and 

asserts that saving on the “potential cost of substantial 

9 See Benton v. State, 847 S.E.2d 625, 628 (Ga. Ct. App. 2020) (“The 

State may show intent to distribute in many ways, including expert 

testimony that the amount of contraband possessed was inconsistent with 

personal use[.]”) (citations and quotation marks omitted); Vines v. State, 

675 S.E.2d 260, 262 (Ga. Ct. App. 2009) (“three, gallon-size bags of 

marijuana weighing 2.9 pounds” inconsistent with personal use).
BOGLE V. GARLAND 45

expenditures of agency time[]” supports its conclusion. 

Opinion at 31 (citation and quotation marks omitted).

That prosecutors make charging and plea-bargaining 

decisions based on a variety of factors is the very reason that 

the record before us is insufficient. The significant deviation 

between the police report and the prosecutor’s decision to 

dismiss the distribution offense compels a requirement for a 

greater factual showing than the government has made.

Furthermore, the Supreme Court has made clear that it is 

not appropriate for courts to consider those exact policy 

arguments:

Record-keeping problems promise to occur 

from time to time regardless who bears the 

burden of proof. And, as in most cases that 

come our way, both sides can offer strong 

policy arguments to support their 

positions. . . . It is hardly this Court’s place to 

pick and choose among competing policy 

arguments like these along the way to 

selecting whatever outcome seems to us most 

congenial, efficient, or fair. Our license to 

interpret statutes does not include the power 

to engage in such freewheeling judicial 

policymaking. Congress was entitled to 

conclude that uncertainty about an alien’s 

prior conviction should [] redound to his 

benefit. Only that policy choice, embodied in 

the terms of the law Congress adopted, 

commands this Court's respect.

Pereida, 141 S. Ct. at 766–67.
46 BOGLE V. GARLAND

To affirm the BIA on this record would allow 

immigration authorities to undermine the prosecutor’s 

exercise of discretion, and disregard Bogle’s presumption of 

innocence as to any conduct beyond the scope of his plea. 

Immigration authorities may not condemn a defendant using 

the clear and convincing standard when a prosecutor, in 

bringing and resolving charges, is required to consider that 

he must prove his case beyond a reasonable doubt. If 

concerns regarding that heavy burden led the prosecutor to 

make some concession, the alien retains the benefit of the 

bargain he struck at the time he entered his plea of guilty. 

Immigration proceedings are not an opportunity to strip an 

alien of that benefit by retrying facts, using a lower standard 

of proof. Nor should they present an opportunity for an IJ, 

to adjudicate free of the Constitutional protections, like the 

right to cross examine and confront adverse evidence or 

statutory protections like the rules of evidence that 

traditionally ensure fair resolutions for criminal defendants.

Rather, Congress requires immigration authorities to 

clearly and convincingly demonstrate that the terms of a 

prior conviction compel removal. Regarding the 30-gram 

limit, the government must show that the weight of the drugs 

was “tethered” to the actual “offense of conviction,” not 

“acquitted or dismissed counts or general conduct[.]” 

Nijhawan, 557 U.S. at 42 (citation omitted).10 The majority 

ignores this aspect of Nijhawan.

10 See also Rampersaud v. Barr, 972 F.3d 55, 60 (2d Cir. 2020)

(“Specifically, the BIA and IJ failed to consider, as is required by

Nijhawan, whether more than $10,000 in victim losses were ‘tied to the 

specific count[ ] covered by [Rampersaud’s] conviction’ for insurance 

fraud.”) (quoting Nijhawan, 557 U.S. at 42); Sokpa-Anku v. Lynch, 

835 F.3d 793, 796 (8th Cir. 2016) (same, collecting cases); Singh v. Att’y 

Gen. of the United States, 677 F.3d 503, 508 (3d Cir. 2012) (same); 
BOGLE V. GARLAND 47

The majority’s quotations from Ku v. Att’y Gen., 

912 F.3d 133, 142 (3d Cir. 2019) do not indicate otherwise. 

The key passage relied on by the majority works for, not 

against, Bogle:

Where, as here, “the record before us 

contains no plea agreement, and certainly not 

one which explicitly spells out the [quantity 

of marijuana] to which [Bogle] pleaded 

guilty,” we will not assume that Bogle 

pleaded guilty to possessing some lower 

quantity of marijuana as “part of an explicit 

bargain between [him] and the Government” 

merely because “the Government could have 

charged [him] with a [more severe] crime[] 

but did not.” “[P]ure conjecture” cannot 

sever the tie between Bogle’s conviction and 

the quantity of marijuana recorded in the 

police report, “[a]bsent a clear and 

unmistakable indication of [the government’s 

stipulation to some lesser quantity] in a 

written plea agreement.”

Opinion at 29 (quoting Ku, 912 F.3d at 142) (emphasis and 

alterations added)).

To begin with, Ku’s record contained a judgment of 

conviction which “include[d] a total loss determination of 

$954,515.71 and [an] order[] [of] restitution in that amount.” 

Ku, 912 F.3d at 137. These documents unambiguously 

Knutsen v. Gonzales, 429 F.3d 733, 739–40 (7th Cir. 2005) (“The better 

result here, and one consistent with the statute, is that the court should 

focus narrowly on the loss amounts that are particularly tethered to 

convicted counts alone.”) (cited favorably in Nijhawan).
48 BOGLE V. GARLAND

defined Ku’s loss amount as well above the relevant $10,000 

threshold. Given that “the loss caused by the conduct 

underlying the offense of conviction establishes the outer 

limits of a restitution order[,]” Hughey v. United States, 

495 U.S. 411, 420 (1990) (emphases added), the judgment 

and restitution order were obviously clear and convincing 

evidence supporting removal.11

The excerpts quoted by the majority appear in a 

discussion regarding deference for plea agreements 

specifically designed to allow defendants to avoid collateral 

immigration consequences.12 Ku argued that her plea deal 

was struck in accordance with such an agreement. Ku, 

912 F.3d at 141–43. Unlike the genuine ambiguity in 

Bogle’s record, Ku’s argument was properly described as 

“pure conjecture.” Not only did the restitution order belie 

the existence of any such agreement, Ku’s sentencing 

memorandum expressly acknowledged that the conviction 

subjected her to automatic deportation. Id. at 142–43. 

Finally, while the Third Circuit rejected Ku’s urging that the 

$954,515.71 figure, if accurate, would have supported more 

serious charges as a basis to believe that she had entered into 

such an agreement with the prosecutor, id. at 142, Bogle’s 

11 Furthermore, the oral argument in Ku made clear that Ku’s PSR

was adopted by the criminal District Court in full, and reflected that she 

received a 14-point enhancement under the sentencing guidelines 

because the losses involved in her conviction exceeded $400,000.

12 In contrast, the record here reveals that the Georgia court intended 

to allow Bogle to avoid such consequences—he pled under a statute 

decreeing that his conviction “shall not be deemed a conviction ... for 

purposes of disqualifications or disabilities imposed by law upon 

conviction of a crime.” Ga. Code § 16-13-2(a). While the statute does 

not override federal immigration law, if the majority seeks a “clear and 

unmistakable indication” of the government’s intent as to the collateral 

consequences Bogle would suffer, the record here contains one.
BOGLE V. GARLAND 49

argument is neither so speculative, nor unsupported by the 

record. Ku’s argument ran openly counter to the criminal 

court’s factual findings, whereas Bogle’s is supported both 

by his assertion of a potentially valid affirmative defense, 

and the fact that the prosecutor ultimately reconsidered, and 

dropped, the original higher charge.13

The majority’s opinion reveals that it has been more 

influenced by the circumstances of Bogle’s vacated Arizona 

drug conviction than it admits,14 and appears to ignore the 

consequence of the prosecutor’s dismissal of the Georgia 

distribution count.15

Simply put, the government is required to demonstrate 

what conduct Bogle pled guilty to committing, in Georgia, 

on that isolated occasion. It has not done so. Immigration 

consequences flow exclusively from a qualifying conviction, 

not “acquitted or dismissed counts or general conduct[.]” 

Nijhawan, 557 U.S. at 42 (citation omitted). Ultimately, 

“whatever degree of ambiguity remains about the nature of 

13 There is no dispute that Bogle pled guilty “[p]ursuant to an 

agreement between the District Attorney’s and Defendant’s defense 

counsel and agreed to by the Court[,]” the government has simply not 

produced direct evidence of the agreement’s specifics, and the record 

does not disclose whether the agreement was reduced to writing. The 

majority’s insistence that I have “invented” such an agreement, Opinion 

at 29, is belied by the record.

14 The majority asserts the Arizona conviction is an unrelated 

offense with no bearing on its analysis, but repeatedly references it in 

support of its decision. Opinion at 8 n.1, 28 n.12.

15 There is an obvious relationship between the elements of the 

dismissed count and the quantity of marijuana found in the compartment 

in the trunk. The dismissal of that count is both relevant to our analysis 

and creates ambiguity which favors Bogle.
50 BOGLE V. GARLAND

[Bogle’s] [only qualifying] conviction, and whatever the 

reason for it, one thing remains stubbornly evident: [the 

government] has not carried [its] burden of showing that he 

was not convicted of a crime involving” less than 30 grams 

of marijuana. Pereida, 141 S. Ct. at 763.

That Bogle has not challenged how much marijuana was 

in the trunk has no bearing on the question before this Court. 

By focusing on the wrong question, the majority 

impermissibly shifts the government’s burden to present 

clear and convincing evidence to support its case onto the 

alien. “Congress knows how to assign the government the 

burden of proving a disqualifying conviction[,]” Pereida, 

141 S. Ct. at 761, and, here, placed the burden for finding an 

alien removable squarely on the shoulders of government. 

See Avina-Renteria v. Holder, 434 F. App’x 626, 628 (9th 

Cir. 2011) (“Mere acquiescence, or failure to contest an IJ’s 

statement that admissions have been made, does not meet 

the government’s burden of proving removability by clear 

and convincing evidence.”) (citing Cortez-Acosta, 234 F.3d 

at 481–82) (emphasis added). “[A]n inconclusive record[,]” 

which is all we have here, “is not sufficient.” Matter of 

Davey, 26 I. & N. Dec. at 41.

“[T]he ties that legal residents develop to the American 

communities in which they live and work, should not be 

lightly severed.” Hernandez-Guadarrama, 394 F.3d at 682–

83. When the government has failed to meet its “heavy 

burden of clear, unequivocal, and convincing evidence[,]” 

Hernandez-Guadarrama, 394 F.3d at 679 (citations 

omitted), the proper course is to reverse the BIA. See, e.g., 

Al Mutarreb v. Holder, 561 F.3d 1023, 1030–31 (9th Cir. 

2009); Hernandez-Guadarrama, 394 F.3d at 683; AvinaRenteria, 434 F. App’x at 629. Because the government has 
BOGLE V. GARLAND 51

not met its burden on this record, I would reverse the 

decision of the BIA.

VI. No Further Proceedings are Warranted

The government has had ample opportunity to meet its 

burden in the more than four years that have passed since it 

initiated these proceedings. There have been nine hearings 

at which it could have presented additional evidence.

Bogle has repeatedly raised the issues before the Court

today in prior proceedings. In his 2017 brief, Bogle, 

proceeding pro se, argued: “The government has submitted 

no evidence to show that Mr. Bogle was convicted of 

possession of more than 30 grams of marijuana for his own 

personal use.” He renewed objections made at the hearing 

before the IJ, when his attorney explained: “[I]n Matter of 

Davey, there were no police reports used in order to find 

whether or not there were 30 grams of marijuana. So, I don't 

know how [the government] got that out of the Matter of 

Davey, because no police reports were used, only the charges 

and the sentence and orders.” Bogle went on to argue in his 

brief: “The government did not submit sufficient evidence to 

prove Mr. Bogle has been convicted of a controlled 

substance offense, other than an offense where he possessed 

a small amount of marijuana.” Because the only evidence 

related to the Georgia conviction concerning an amount of 

marijuana in excess of one ounce is the police report, there 

can be no doubt Bogle was arguing that it — the police report 

— was insufficient proof to trigger the 30-gram threshold.

After the case was remanded on other grounds, in 2019, 

Bogle, both when proceeding pro se and subsequently 

through counsel, continued to raise that there was 

insufficient evidence to meet the government’s burden to 

prove that his conviction exceeded the 30-gram threshold, 
52 BOGLE V. GARLAND

and that the police report should not have been admitted.16 

Furthermore, Bogle’s 2019 brief before the BIA not only 

spent five pages arguing for the exclusion of the police report 

generally, but specifically advanced the very arguments 

Bogle presses here:

The only the [admissible] document in the 

record relating to the Georgia conviction is 

the Final Disposition in Criminal Action, 

identified as Exhibit 23, which shows that 

Mr. Bogle was sentenced solely in relation to 

a charge of V.G.C.S.A. 16-13-30(J)(1) (Poss 

of Marijuana, more than an oz). No other 

indication of an amount is mentioned in the 

final disposition. As such, the record in this 

case is inconclusive.

The charge to which Mr. Bogle was 

sentenced does not identify the particular 

amount, other than “more than an ounce”. 

There is no charging document, plea 

agreement, plea colloquy, or other document 

in the record that reveals the factual basis for 

the sentence. Because Mr. Bogle’s arguendo

“conviction” could have rested on facts that 

do not relate to no more than 30 grams of 

marijuana, the Court cannot conclusively 

connect the arguendo “conviction” to what is 

a controlled substance conviction under INA

16 In response, the IJ incorrectly stated on multiple occasions that 

Bogle, rather than the government, bore the burden on that question, 

raising further concerns regarding the IJ’s assessment of the police 

report.
BOGLE V. GARLAND 53

§ 237(a)(2)(D)(i), the sole remaining ground 

of removability claimed by the DHS.

The government has had sufficient notice and multiple 

opportunities to correct its own error by supplementing its 

evidence. Despite these opportunities, and the benefit of this 

Court’s analysis regarding the indictment in Fuentes, the 

government has taken no steps to meet its burden. Given 

that the immigration authorities have been applying the 

circumstance-specific approach throughout Bogle’s 

proceedings, the government cannot claim it was limited in 

what it could introduce and rely on, and now needs an 

opportunity to expand the scope of its submissions. Cf.

Kawashima v. Holder, 615 F.3d 1043, 1056–57 (9th Cir. 

2010), aff’d, 565 U.S. 478 (2012) (Remanding for further 

factual findings on rehearing after intervening Supreme 

Court precedent held that the circumstance-specific, rather 

than categorical, approach applied, and describing how this 

Court has “distinguished between circumstances in which 

remand is necessary to permit the BIA to apply its expertise 

in reconsidering evidence and circumstances in which 

remand is unnecessary because the BIA exercised its 

expertise before the case came before us.”). It is time for 

this matter to come to an end.

While remand is the “ordinary practice[,]”the 

government has given us no reason to grant such relief. See

Medina-Lara v. Holder, 771 F.3d 1106, 1118 (9th Cir. 2014) 

(“The government has given us no reason to provide it a third

bite at the apple[.]”) (citations and quotation marks omitted); 

Kureghyan v. Holder, 338 F. App’x 622, 624 (9th Cir. 2009) 

(memorandum) (“[R]emand to the agency would serve little 

purpose other than providing the DHS with an unfair second

bite at the apple.”). Plainly stated, “[t]here is no clear and 

convincing evidence in the record linking” the 2.94 pounds 
54 BOGLE V. GARLAND

of marijuana in the trunk to Bogle’s conviction, “the 

government has not suggested how it would cure this 

deficiency on remand[,]” and the government has already 

amply litigated the 30-gram threshold as it relates to the 

Georgia conviction. Medina-Lara, 771 F.3d at 1118–19. 

Accordingly, I would grant Bogle’s petition.