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.
12619
RODRIGUEZ v. HOLDER 12621
.
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. Depart-
ment of Justice — Civil Division, Office of Immigration Liti-
gation, 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 perma-
nent 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
12622 RODRIGUEZ v. HOLDER
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 convic-
tion under California Penal Code § 273.5(a) as a separate
ground for deportability. The immigration judge terminated
the deportation proceeding by granting Rodriguez a discre-
tionary 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 posses-
1
Rodriguez 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 Conven-
tion 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 simul-
taneously with this opinion, and we deny the petition for review in its
entirety.
RODRIGUEZ v. HOLDER 12623
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 com-
menced 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 sec-
tion 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
12624 RODRIGUEZ v. HOLDER
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
2
The 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.
RODRIGUEZ v. HOLDER 12625
rendering removable aliens with more than one drug convic-
tion.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 vio-
lations only — that is, those involving the simple possession
of small amounts of marijuana.”)
[3] We thus hold that Rodriguez is removable under sec-
tion 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 convic-
tions for possession of cocaine and heroin render him ineligi-
ble for the personal use exception to removal.5
3
Rodriguez 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).
4
We accept the parties’ mutual representations that Rodriguez’s convic-
tion 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.
5
Rodriguez’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. Gon-
zales, 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 Rodri-
guez’s conviction for cannabis possession is not his only drug offense.
12626 RODRIGUEZ v. HOLDER
IV.
We conclude that Rodriguez is ineligible for the personal
use exception of 8 U.S.C. § 1227(a)(2)(B)(i), because his con-
viction for possession of concentrated cannabis is not his only
controlled substance offense. The petition for review is
DENIED.