Case: 17-60529 Document: 00514689202 Page: 1 Date Filed: 10/19/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-60529 October 19, 2018 Lyle W. Cayce Clerk MANUEL LOPEZ VENTURA, Also Known as Manuel A. Lopez-Ventura, Petitioner, versus JEFFERSON B. SESSIONS, III, U.S. Attorney General, Respondent. Appeal from an Order of the Board of Immigration Appeals Before SMITH, CLEMENT, and COSTA, Circuit Judges. JERRY E. SMITH, Circuit Judge: Manuel Lopez Ventura, a native and citizen of the Dominican Republic and a lawful permanent resident (“LPR”) of the United States, pleaded guilty of possessing AB-CHMINACA in violation of Louisiana Revised Statutes § 40.966(C). After his arrest, but before his conviction, AB-CHMINACA was added to the federal schedules of controlled substances. After his conviction, Lopez Ventura traveled to the Dominican Republic. Upon his return, he applied for admission as an LPR. But the Department of Homeland Security charged him with being inadmissible under the Immigration and Nationality Case: 17-60529 Document: 00514689202 Page: 2 Date Filed: 10/19/2018 No. 17-60529 Act (“INA”) because of the Louisiana conviction. See 8 U.S.C. § 1182(a)(2)- (A)(i)(II). Lopez Ventura denied the charge, relying on the fact that AB-CHMINACA was not a controlled substance at the time of his arrest. The Board of Immigration Appeals (“BIA”) ultimately found him inadmissible, rea- soning that AB-CHMINACA was a controlled substance on the date of his con- viction. Because the application of § 1182(a)(2)(A)(i)(II) to Lopez Ventura is impermissibly retroactive, we grant the petition for review, reverse the order of the BIA, and remand for the BIA to determine whether Lopez Ventura was convicted of possessing marihuana or, instead, AB-CHMINACA. I. In 2014, Lopez Ventura was arrested for possessing cigarillo cigars and AB-CHMINACA, a synthetic cannabinoid. In February 2015, he was charged with possession of a controlled substance and drug paraphernalia in violation of Louisiana Revised Statutes §§ 40:966(C) and 40:1023, respectively. On April 16, 2015, he pleaded guilty of possessing marihuana and drug parapher- nalia. At the time of the arrest, AB-CHMINACA was not a federally controlled substance. See 21 C.F.R. § 1308.11 (effective Mar. 7, 2014, to Jan. 29, 2015). Yet by the time he was charged and pleaded guilty, the Drug Enforcement Administration had added AB-CHMINACA to the controlled substance sched- ules as authorized by 21 U.S.C. § 811(h). 1 An alien convicted of violating any state law relating to a federally controlled substance is inadmissible as an LPR. See 8 U.S.C. § 1182(a)(2)- (A)(i)(II). Lopez Ventura claimed he was admissible because his Louisiana convictions concerned AB-CHMINACA, which was not a controlled substance 1 See 80 Fed. Reg. 5042–01 (Jan. 30, 2015) (adding AB-CHMINACA to the schedule of controlled substances); 21 C.F.R. § 1308.11(h)(29) (effective Jan. 30, 2015, to Mar. 19, 2015); § 1308.11(h)(21) (effective Mar. 20, 2015, to July 16, 2015). 2 Case: 17-60529 Document: 00514689202 Page: 3 Date Filed: 10/19/2018 No. 17-60529 on the date of his offense. The Immigration Judge (“IJ”) denied the motion, reasoning that ...
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