FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL MANUEL RODRIGUEZ, 

Petitioner, No. 09-70460

v. Agency No.  A018-202-415 ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 14, 2010*

San Francisco, California

Filed August 23, 2010

Before: Alex Kozinski, Chief Judge, Consuelo M. Callahan,

Circuit Judge, and Ricardo S. Martinez, District Judge.**

Per Curiam Opinion

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Ricardo S. Martinez, United States District Judge for

the Western District of Washington, sitting by designation. 

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.

COUNSEL

Holly S. Cooper, of the University of California at Davis Law

School, Immigration Law Clinic, and Megan E. Lane, of

Downey Brand LLP, for the petitioner.

Ada E. Bosque and Eric W. Marsteller, of the U.S. Department of Justice — Civil Division, Office of Immigration Litigation, and Ronald E. LeFevre, of the Department of

Homeland Security, Office of the District Counsel, for the

respondent.

OPINION

PER CURIAM: 

Daniel Manuel Rodriguez (“Rodriguez”), a lawful permanent resident, brings this petition for review of a decision of

the Board of Immigration Appeals (“BIA”) holding that he is

removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) based on

his 2004 conviction for possession of less than 30 grams of

concentrated cannabis. We have jurisdiction under 8 U.S.C.

§ 1252(a). On appeal, Rodriguez contends that, despite his

prior convictions for possession of cocaine and heroin, he is

entitled to the “personal use exception” of section

1227(a)(2)(B)(i), which exempts from removability those

RODRIGUEZ v. HOLDER 12621
convicted of only a “single offense involving possession for

one’s own use of 30 grams or less of marijuana.” We disagree

and deny his petition for review.1

I.

Rodriguez, a citizen of Cuba, became a United States legal

permanent resident in 1976. In 1996, he pled guilty to one

count of possession of cocaine and one count of possession of

heroin in violation of California Health and Safety Code

§ 11350(a). Based on his convictions, the Immigration and

Naturalization Service (“INS”) initiated proceedings to deport

Rodriguez as an alien convicted of an aggravated felony. 

While his deportation proceeding was pending, Rodriguez

was convicted of two new crimes. First, Rodriguez pled guilty

to possession of marijuana in violation of California Health &

Safety Code § 11357(b). Second, Rodriguez pled guilty to

willful infliction of corporal injury in violation of California

Penal Code § 273.5(a). The INS alleged Rodriguez’s conviction under California Penal Code § 273.5(a) as a separate

ground for deportability. The immigration judge terminated

the deportation proceeding by granting Rodriguez a discretionary waiver permitting him to remain in the United States

pursuant to former Immigration and Nationality Act (“INA”)

§ 212(c), 8 U.S.C. § 1182(c). 

After the deportation proceeding ended, Rodriguez was

convicted of two additional crimes. He pled guilty to posses1Rodriguez also seeks review of the BIA’s determinations that: (1) he

is removable based on his convictions for violating California Penal Code

§ 273.5; (2) he is ineligible for asylum based on his criminal history; and

(3) he is ineligible for withholding of removal or relief under the Convention Against Torture because he has not demonstrated that it is more likely

than not that he would be persecuted or tortured if removed to Cuba. We

address these issues separately in a memorandum disposition filed simultaneously with this opinion, and we deny the petition for review in its

entirety. 

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sion of concentrated cannabis in violation of California Health

& Safety Code § 11357(a) and nolo contendere to willful

infliction of corporal injury under California Penal Code

§ 273.5(a). 

The Department of Homeland Security (“DHS”) then commenced the current removal proceeding against Rodriguez.

DHS alleged that Rodriguez was removable for violation of

a controlled substances law under 8 U.S.C. § 1227(a)(2)(B)(i),

due to his concentrated cannabis possession offense. The

immigration judge held that Rodriguez was removable based

on that conviction and rejected his applications for asylum,

withholding of removal, and CAT relief. The BIA affirmed,

and Rodriguez filed this petition for review.

II.

We review the BIA’s legal determinations de novo.

Murillo-Salmeron v. INS, 327 F.3d 898, 902 (9th Cir. 2003);

Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir.

1997).

III.

[1] 8 U.S.C. § 1227(a)(2)(B)(i), under which Rodriguez

was found removable, provides that:

Any alien who at any time after admission has been

convicted of a violation of . . . any law or regulation

of a State, the United States, or a foreign country

relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense

involving possession for one’s own use of 30 grams

or less of marijuana, is deportable.

(emphasis added). Rodriguez contends that the underlined

language (hereafter, the “personal use exception”) means that

a conviction for possession of 30 grams or less of marijuana

RODRIGUEZ v. HOLDER 12623
for personal use cannot be the basis for an alien’s removal,

unless this is the alien’s second or subsequent such offense.

In other words, Rodriguez contends that he should receive the

benefit of the personal use exception because his concentrated

cannabis conviction is his first “personal use” marijuana

offense, even though it is not his first drug offense.2

In interpreting a statute, we look to its plain language.

“[W]hen the statute’s language is plain, the sole function of

the courts — at least where the disposition required by the

text is not absurd — is to enforce it according to its terms.”

Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (internal

quotation marks omitted). We read the words of the statute

“in their context and with a view to their place in the overall

statutory scheme.” FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000). We interpret each provision

to fit harmoniously as part of “a symmetrical and coherent”

statutory scheme. Id. 

[2] We hold that the plain language of the personal use

exception of section 1227(a)(2)(B)(i) does not apply to aliens

who have more than one drug conviction. That is, section

1227(a)(2)(B)(i) exempts from removability solely those

aliens who have (1) committed only one controlled substance

offense, where (2) that offense is possession for personal use

of less than 30 grams of marijuana. Thus, here, Rodriguez’s

prior cocaine and heroin possession convictions render him

ineligible for the personal use exception. We conclude that

Congress chose to exempt from removability only aliens who

commit a single, defined marijuana possession offense, while

2The parties dispute whether Rodriguez’s first conviction for possession

of marijuana in violation of California Health & Safety Code § 11357(b)

constitutes an additional “personal use” marijuana offense that forecloses

Rodriguez from claiming the single personal use exception. Since we

determine that Rodriguez is not entitled to the personal use exception

based on his other drug convictions, we need not and do not reach this

issue. 

12624 RODRIGUEZ v. HOLDER
rendering removable aliens with more than one drug conviction.3

Our reading of the plain language is consistent with the

BIA’s precedent. Cf. In re Moncada-Servellon, 24 I. & N.

Dec. 62, 65 (BIA 2007) (“[T]he most natural, common-sense

reading of the personal-use exception, viewed in its statutory

context, is that it is directed at ameliorating the potentially

harsh immigration consequences of the least serious drug violations only — that is, those involving the simple possession

of small amounts of marijuana.”) 

[3] We thus hold that Rodriguez is removable under section 1227(a)(2)(B)(i) based on his conviction for violating

California Health & Safety Code § 11357(a), for possession

of concentrated cannabis.4 We conclude that his prior convictions for possession of cocaine and heroin render him ineligible for the personal use exception to removal.5

3Rodriguez also contends that section 1227(a)(2)(B)(i) is ambiguous,

such that the rule of lenity compels us to interpret it in his favor. Since we

hold that the statute is not ambiguous, the rule of lenity does not apply.

See Moskal v. United States, 498 U.S. 103, 107-08 (1990). 

4We accept the parties’ mutual representations that Rodriguez’s conviction was for possession of 30 grams or less of cannabis. Even though the

factual basis for this representation is not clear from the record, the parties

have waived the right to argue otherwise. 

5Rodriguez’s convictions under California Health & Safety Code

§ 11350(a) for possession of cocaine and heroin cannot be the basis for his

removal in this proceeding, because he was previously granted a § 212(c)

waiver for those convictions. However, a § 212(c) waiver does not

expunge his convictions, but merely means that the waived convictions,

standing alone, cannot be the basis for his removal. See Becker v. Gonzales, 473 F.3d 1000, 1003-04 (9th Cir. 2007); Molina-Amezcua v. INS,

6 F.3d 646, 647 (9th Cir. 1993) (“A waiver of deportation gives the alien

a chance to stay in the United States despite his misdeed, but it does not

expunge the conviction.”) We consider them only to establish that Rodriguez’s conviction for cannabis possession is not his only drug offense. 

RODRIGUEZ v. HOLDER 12625
IV.

We conclude that Rodriguez is ineligible for the personal

use exception of 8 U.S.C. § 1227(a)(2)(B)(i), because his conviction for possession of concentrated cannabis is not his only

controlled substance offense. The petition for review is

DENIED.

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