IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60744

MARIA SYLVIA CARDOSO DE FLORES, also known as Maria Flores, 

 Petitioner

v.

MATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of

the Board of Immigration Appeals

Before KING, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:

An immigration judge ordered petitioner Maria Sylvia Cardoso de Flores 

removed from the United States. Cardoso de Flores had been lawfully admitted 

as a permanent resident alien, but the immigration judge determined she was

removable under the Immigration and Nationality Act because she was 

convicted of a drug offense. The Board of Immigration Appeals affirmed. 

Cardoso de Flores petitions this court for review, arguing that she is not 

removable because she was convicted for possessing a small amount of 

marijuana for personal use. We find no error in the BIA’s analysis; accordingly, 

we DENY Cardoso de Flores’s petition.

United States Court of Appeals

Fifth Circuit

FILED

February 11, 2019

Lyle W. Cayce

Clerk

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I.

Cardoso de Flores, a Mexican citizen, was lawfully admitted to the 

United States as a permanent resident alien in 1998 after marrying a United 

States citizen. In 2000, authorities in Tennessee arrested Cardoso de Flores 

after finding her in a car carrying 54.6 pounds of marijuana. A Tennessee 

grand jury indicted Cardoso de Flores with possessing with the intent to sell 

more than 4,536 grams of marijuana in violation of Tenn. Code Ann. § 39-17-

417. Cardoso de Flores later pleaded guilty to the lesser offense of possession 

of a controlled substance in violation of Tenn. Code Ann. § 39-17-418. 

In 2010, the Department of Homeland Security issued Cardoso de Flores 

a notice to appear charging her with removability under 8 U.S.C.

§ 1227(a)(2)(B)(i)—part of the Immigration and Nationality Act (“INA”)—

because she had been convicted of a controlled-substance offense. Cardoso de 

Flores argued through counsel that her Tennessee conviction did not render 

her removable because her conviction was for “a single offense involving 

possession for one’s own use of 30 grams or less of marijuana,” which 

§ 1227(a)(2)(B)(i) excepts as grounds for removal. Looking to Cardoso de 

Flores’s arrest report, an immigration judge (the “IJ”) determined that Cardoso 

de Flores’s conviction involved possession of 54.6 pounds of marijuana.1 The IJ 

therefore determined that § 1227(a)(2)(B)(i)’s personal-use exception did not 

apply. The IJ further found Cardoso de Flores was not entitled to cancellation 

of removal because she did not live in the United States continuously for seven 

years prior to her offense. Accordingly, the IJ ordered Cardoso de Flores 

removed from the United States.

 

1 There are 453.592 grams in a pound. Therefore, Cardoso de Flores was caught with 

well over 30 grams of marijuana.

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Cardoso de Flores appealed to the Board of Immigration Appeals (“BIA”). 

Following its precedent, the BIA applied a circumstance-specific inquiry to 

determine whether the personal-use exception applied to Cardoso de Flores’s 

conviction. It determined as a threshold matter that the Tennessee statute 

supporting Cardoso de Flores’s conviction was not limited to simple possession 

of 30 or fewer grams of marijuana. Then, looking to Cardoso de Flores’s arrest 

report, criminal complaint, and plea colloquy, the BIA determined that 

Cardoso de Flores possessed 54.6 pounds of marijuana. Finding no contrary 

evidence, it concluded that the personal-use exception did not apply and 

affirmed the IJ’s order. Cardoso de Flores now petitions this court for review. 

II.

Where, as here, the BIA issues its own opinion explaining its reasoning, 

we review the BIA’s opinion instead of the IJ’s order. See Ghotra v. Whitaker, 

912 F.3d 284, 287 (5th Cir. 2019). “Although we generally review its legal 

conclusions de novo, ‘the BIA is entitled to Chevron deference when it 

interprets a statutory provision of the INA and gives the statute “concrete 

meaning through a process of case-by-case adjudication,”’ so long as the BIA’s 

opinion is precedential.” Calvillo Garcia v. Sessions, 870 F.3d 341, 343-44 (5th 

Cir. 2017) (footnotes omitted) (quoting Ali v. Lynch, 814 F.3d 306, 309-10 (5th 

Cir. 2016)); see also Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 

837, 843-44 (1984). Under Chevron, we afford agency interpretations of 

statutes “‘controlling weight unless they are arbitrary, capricious, or 

manifestly contrary to the statute’ or Congress has ‘unambiguously expressed’

a contrary intent.” Calvillo Garcia, 870 F.3d at 344 (quoting Orellana-Monson 

v. Holder, 685 F.3d 511, 517 (5th Cir. 2012)). We review the BIA’s factual 

findings for substantial evidence. Ghotra, 912 F.3d at 287.

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III.

Section 1227 lists categories of aliens subject to removal, including:

Any alien who at any time after admission has been 

convicted of a violation of (or a conspiracy or attempt to violate) 

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

country relating to a controlled substance (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.

§ 1227(a)(2)(B)(i). Courts must apply the so-called categorical approach to 

determine whether an alien’s conviction relates to a controlled substance. See 

Mellouli v. Lynch, 135 S. Ct. 1980, 1985-87 (2015). Under the categorical 

approach, courts “look[] to the statutory definition of the offense of conviction, 

not to the particulars of an alien’s behavior.” Id. at 1986.

The parties do not dispute that the categorical approach governs 

whether Cardoso de Flores’s conviction relates to a controlled substance, nor 

do they dispute that under the categorical approach, Cardoso de Flores’s 

conviction in fact does relate to a controlled substance. Rather, the dispute is 

over the exception in the final clause of § 1227(a)(2)(B)(i): “other than a single 

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

The BIA applies a circumstance-specific approach to determine whether a 

conviction falls within this personal-use exception. See Davey, 26 I. & N. Dec. 

37, 39 (B.I.A. 2012).

The BIA’s approach to assessing removability under § 1227(a)(2)(B)(i)

proceeds in three parts. First, it applies the categorical approach to determine 

whether an alien’s conviction relates to a drug offense. See, e.g., 

Wanniarachchi, 2018 WL 3045846, at *2 (B.I.A. Apr. 23, 2018) (unpublished).

If so, it then asks whether “the fact of conviction is sufficient by itself to 

conclusively establish all facts relevant to prove the applicability of the” 

exception. Dominguez-Rodriguez, 26 I. & N. Dec. 408, 413 (B.I.A. 2014). If this 

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is the case, the “inquiry is at an end, and the removal charge must be dismissed 

without resort to a circumstance-specific inquiry.” Id. But if the fact of the 

conviction is not enough to show the personal-use exception applies, then the 

BIA looks to the specific facts supporting the alien’s conviction to ascertain 

whether the conviction involved personal possession of 30 grams or less of 

marijuana. See Davey, 26 I. & N. Dec. at 39. Therefore, for example, if an alien

was convicted of violating a statute that criminalizes simple possession of 29 

grams or less of marijuana, then the elements of the conviction would 

conclusively establish that the alien’s offense fell within the personal-use 

exception and the BIA would have no reason to look at the facts supporting the 

conviction. But if, as the BIA concluded was the case here, the alien was 

convicted of violating a statute that criminalizes simple possession of 

marijuana without reference to quantity, then the BIA looks to the facts 

supporting the conviction to determine the quantity involved. 

Cardoso de Flores maintains that this approach is incorrect. She says 

the categorical approach must apply to § 1227(a)(2)(B)(i) in its entirety. In 

other words, Cardoso de Flores argues that—regardless of the real-world facts 

supporting her conviction—if she could have been convicted under the same 

Tennessee statute for possessing 30 grams or less of marijuana for her personal 

use, then the personal-use exception applies to her conviction. She also argues 

that the personal-use exception should apply to her conviction even under the 

BIA’s approach because her conviction necessarily involved the possession of 

30 grams or less of marijuana for her personal use.

A.

We have never directly addressed the BIA’s position that the 

circumstance-specific approach applies to the personal-use exception in 

§ 1227(a)(2)(B)(i). We have applied the BIA’s circumstance-specific approach

on one occasion. See Esquivel v. Lynch, 803 F.3d 699, 702 (5th Cir. 2015). But 

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we specifically noted that neither party challenged the BIA’s approach and that 

our holding would have been the same under the categorical approach. See id. 

at 702 n.2. Now faced squarely with this question, we conclude that the BIA’s 

position that the personal-use exception requires a circumstance-specific 

inquiry is a reasonable interpretation of the INA; we therefore defer to the 

BIA.2

The Supreme Court’s analysis in Nijhawan v. Holder, 557 U.S. 29 (2009), 

all but compels this result. In Nijhawan, the Court considered a different 

section of the INA that defines the term “aggravated felony” for purposes of 

§ 1227(a)(2)(A)(iii). See 557 U.S. at 32. Under that definition, an alien is 

removable for having committed an aggravated felony if the alien is convicted 

of, inter alia, “an offense that . . . involves fraud or deceit in which the loss to 

the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). The alien 

in Nijhawan had been convicted in federal court of violating five federal fraud 

statutes. 557 U.S. at 32. None of the statutes at issue required the Government 

to prove a specific loss, but the alien stipulated at sentencing that he defrauded 

his victims of more than $100 million. Id. Thus, if § 1101(a)(43)(M)(i)’s $10,000 

threshold referred to an element that must be proved in every instance to 

sustain a conviction, then the alien’s fraud convictions would not have been 

aggravated-felony convictions. But if the $10,000 threshold referred to facts 

underlying the convictions, then the fraud convictions would have been 

aggravated-felony convictions.

 

2 Although the BIA’s decision below was from a single board member and is thus not 

precedential, see Dhuka v. Holder, 716 F.3d 149, 155 (5th Cir. 2013), that decision followed 

prior published three-member decisions in which the BIA held the circumstance-specific 

approach applies to the personal-use exception. See Oanh Nguyen v. Holder, 542 F. App’x 

384, 389 (5th Cir. 2013) (unpublished) (per curiam) (“[P]rior precedential BIA decisions cited 

by [a] single-member decision will be afforded Chevron deference as appropriate.”).

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The Court determined that the $10,000 threshold referred to the specific 

facts of the crime. See id. at 40. The Court began its analysis by observing:

[I]n ordinary speech words such as ‘crime,’ ‘felony,’ ‘offense,’ and 

the like sometimes refer to a generic crime, say, the crime of fraud 

or theft in general, and sometimes refer to the specific acts in 

which an offender engaged on a specific occasion, say, the fraud 

that the defendant planned and executed last month.

Id. at 33-34. The Court then recognized that it had previously interpreted the 

term “violent felony” in the Armed Career Criminal Act (the “ACCA”) to refer 

to generic crimes. See id. at 34-35. But it explained that the language in the 

ACCA’s definition of “violent felony” refers to generic crimes and elements of 

crimes. See id. at 36. By contrast, the Court noted, § 1101(a)(43)’s definition of 

“aggravated felony” uses some “language that almost certainly does not refer 

to generic crimes but refers to specific circumstances.” Id. at 37.

To illustrate, the Court gave the example of § 1101(a)(43)(P), which 

defines aggravated felony to include “falsely making, forging, counterfeiting, 

mutilating, or altering a passport . . . except in the case of a first offense for 

which the alien . . . committed the offense for the purpose of assisting . . . the 

alien’s spouse, child, or parent.” See id. (second and third omissions in original) 

(emphasis omitted) (quoting § 1101(a)(43)(P)). The Court explained that 

“‘forging . . . passport[s]’ may well refer to a generic crime,” but it said the 

“exception cannot possibly refer to a generic crime[] . . . because there is no 

such generic crime.” Id. (first alteration and first omission in original) (quoting 

§ 1101(a)(43)(P)). The Court thus surmised that “if the provision is to have any 

meaning at all, the exception must refer to the particular circumstances in 

which an offender committed the crime on a particular occasion.” Id. at 37-38. 

Therefore, the Court concluded that some parts of the “aggravated felony” 

definition refer to generic crimes and thus require the categorical approach 

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while other parts refer to the facts of the particular case and require the 

circumstance-specific approach. See id. at 38.

Turning to § 1101(a)(43)(M)(i) specifically, the Court determined that it 

called for the circumstance-specific approach. The Court first noted that the 

text of that subparagraph—specifically the use of “in which”—appeared to 

refer to “the commission of the offense of conviction.” Id. at 38-39. It then 

observed that applying the categorical approach “would leave 

[§ 1101(a)(43)(M)(i)] with little, if any, meaningful application.” Id. at 39. The 

Court elaborated that it “found no widely applicable federal fraud statute that 

contains a relevant monetary loss threshold.” Id. Further, the Court surveyed 

state law and concluded that at the time Congress added the $10,000 threshold 

to § 1101(a)(43)(M)(i), only eight states had fraud statues “in respect to which 

[§ 1101(a)(43)(M)(i)]’s $10,000 threshold, as categorically interpreted, would 

have full effect.” Id. at 40.

Applying the same analysis to § 1127(a)(2)(B)(i)’s personal-use 

exception, we conclude that the BIA reasonably interpreted the personal-use 

exception to require a circumstance-specific approach. First, the language “a 

single offense involving” suggests a circumstance-specific inquiry. Although, 

as the Court recognized, “offense” could refer to either a generic crime or 

specific conduct, see id. at 33-34, the use of “involving” makes the latter 

interpretation more plausible. In this regard, “involving” functions similarly to 

the use of “in which” in § 1101(a)(43)(M)(i) that swayed the Court toward the 

circumstance-specific approach. 

But perhaps more tellingly, applying the categorical approach to the 

personal-use exception would leave § 1227(a)(2)(B)(i) “with little, if any, 

meaningful application.” Id. at 39. Congress first added the personal-use 

exception to § 1227(a)(2)(B)(i)’s predecessor in 1990. See Immigration Act of 

1990, Pub. L. No. 101-649, § 602, 104 Stat. 4978, 5080. At that time, the federal 

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simple-possession statute did not distinguish between possession of marijuana 

as opposed to any other controlled substance, nor did it distinguish between 

possession of greater or less than 30 grams. See 21 U.S.C. § 844(a) (1988). 

Likewise, a majority of states and the District of Columbia followed the 

Uniform Controlled Substances Act (“UCSA”) at the time. The 1990 version of 

the UCSA’s simple-possession provision is at least somewhat congruent to the 

personal-use exception in that it carves out a lower offense for simple 

possession of fewer than 29 grams of marijuana. Unif. Controlled Substances 

Act § 406(d) (Unif. Law Comm’n 1990). But the difference in the quantity 

cutoff—as small as it is—means that no simple-possession conviction under 

the UCSA would ever render an alien removable under the categorical 

approach: possession of 29 or more grams of marijuana under the UCSA is a 

categorically broader offense than possession of more than 30 grams of 

marijuana. If Congress had intended for § 1227(a)(2)(B)(i) to track state law 

such that the categorical approach would apply, one would expect Congress to 

set the upper limit for the personal-use exception at 29 rather than 30 grams. 

Accordingly, Congress must have intended the circumstance-specific approach 

to apply.

Cardoso de Flores relies solely on Moncrieffe v. Holder, 569 U.S. 184 

(2013), to argue otherwise. Moncrieffe is inapposite. The issue in Moncrieffe 

was whether a Georgia possession-with-intent-to-distribute statute 

categorically fit the federal generic definition of illicit trafficking in a controlled 

substance. See 569 U.S. at 192. The Court held that the Georgia statute did 

not meet the generic definition because it prohibited distributing small 

amounts of marijuana without remuneration, which federal law explicitly 

excluded from its drug-trafficking prohibition. See id. at 194-95. Thus, the 

Court held that the Georgia statute was categorically broader than the generic 

offense. See id. The Government nevertheless argued that the Court should 

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adopt an approach similar to the one it endorsed in Nijhawan in which it would 

look to the specific circumstances to determine whether the no-remuneration 

exception applied. See id. at 200. The Court rejected the invitation; in 

distinguishing Nijhawan, it noted that the exception in that case came from 

the INA itself whereas the no-remuneration exception was part of the generic 

offense. See id. at 202. In this case, as in Nijhawan, that the personal-use 

exception is located “in the INA proper suggests an intent to have the relevant 

facts found in immigration proceedings.” Id.

We therefore conclude that the BIA’s interpretation of § 1227(a)(2)(B)(i)’s 

personal-use exception is reasonable, so we defer to it. 

B.

Applying the BIA’s circumstance-specific approach, we conclude that 

Cardoso de Flores’s conviction does not fall within the personal-use exception. 

Cardoso de Flores argues that her conviction for possession of a controlled 

substance under Tenn. Code. Ann. § 39-17-418 necessarily involved possession 

of no more than 14.175 grams of marijuana for personal use. Ergo, she insists, 

the BIA should have concluded that the personal-use exception applied without 

looking to records from her arrest and prosecution. 

Cardoso de Flores misreads § 39-17-418. Section 39-17-418 states, in 

relevant part: 

(a) It is an offense for a person to knowingly possess or 

casually exchange a controlled substance, unless the substance 

was obtained directly from, or pursuant to, a valid prescription or 

order of a practitioner while acting in the course of professional 

practice.

(b) It is an offense for a person to distribute a small amount 

of marijuana not in excess of one-half ( 1⁄2 ) ounce (14.175 grams).

The text and structure of § 39-17-418 show that subsection (a) 

criminalizes simple possession and casual exchange of a controlled substance, 

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regardless of the specific type or quantity of that substance, while subsection 

(b) criminalizes low-quantity marijuana distribution. This is especially 

apparent when read in conjunction with § 39-17-417, which criminalizes more 

serious controlled-substance offenses. Section 39-17-417(g)(1) makes it a felony 

to distribute more than 14.175 grams of marijuana, thus addressing a more 

serious distribution offense than § 39-17-418(b). But no part of § 39-17-

417(g)(1) addresses a simple-possession offense more serious than § 39-17-

418(a), suggesting that all simple possession offenses, regardless of quantity, 

fall under § 39-17-418(a).3

Thus, to the extent Cardoso de Flores was convicted under subsection 

(a), her conviction could have involved possession of a substance other than 

marijuana or possession of greater than 30 grams of marijuana, either of which 

would place the conviction beyond the personal-use exception’s reach. To the 

extent she was convicted under subsection (b), her conviction would have 

involved distribution, which would likewise place her conviction beyond the 

personal-use exception’s reach. Therefore, the BIA appropriately looked to the 

facts surrounding Cardoso de Flores’s arrest and conviction. Looking to those 

facts, we conclude that substantial evidence supports the BIA’s findings that 

Cardoso de Flores possessed 54.6 pounds of marijuana—substantially more 

than the personal-use exception’s 30-gram threshold. Cardoso de Flores does 

not argue otherwise.

 

3 We also reject Cardoso de Flores’s suggestion that the rule of lenity should inform 

our interpretation of § 39-17-418. Even assuming the rule of lenity could otherwise apply in 

this situation, we perceive no ambiguity in this statute, especially not one severe enough to 

warrant resort to the rule of lenity. See United States v. Suchowolski, 838 F.3d 530, 534 (5th 

Cir. 2016) (“[T]he rule of lenity only applies if, after considering the text, structure, history, 

and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the 

[c]ourt must simply guess as to what Congress intended”. (alterations in original) (quoting 

United States v. Castleman, 572 U.S. 157, 172-73 (2014))).

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IV.

For the reasons stated above, we DENY Cardoso de Flores’s petition for 

review.

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