BIA reasserts the circumstance-specific inquiry on the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana”

Matter of Jonet DOMINGUEZ-RODRIGUEZ, Respondent
26 I&N Dec. 408 (BIA 2014) Interim Decision #3814
Decided September 18, 2014
U.S. Department of Justice
Executive Office for Immigration Review Board of Immigration Appeal

For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), distinguished. Matter of Davey, 26 I&N Dec. 37 (BIA 2012), reaffirmed.

In a decision issued September 18, 2014, the Board of Immigration Appeals, has rolled back some of the gains from the SCOTUS decision in Moncrieffe. Matter of Dominguez-Rodriguez (26 I&N Dec. 408 (BIA 2014) concerns a noncitizen convicted of possession of more than one ounce (28.5g) of marijuana. The Immigration Judge concluded that the respondent is not removable based on his determination that the minimum conduct punishable under the statute in question involved possession of 30 grams or less of marijuana for personal use. DHS appealed.

The respondent is a native and citizen of Cuba and a lawful permanent resident of the United States. On July 2, 2013, he was convicted of possessing more than 1 ounce of marijuana in violation of section 453.336 of the Nevada Revised Statutes, which is a “category E felony.” He was sentenced to an indeterminate term of imprisonment of between 19 and 48 months, which was suspended, and he was placed on probation. Based on that conviction, the DHS filed a notice to appear in Immigration Court charging the respondent with deportability under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), which provides in pertinent part that “[a]ny alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . , other than a single offense involving possession for one’s own use of thirty grams or less of marijuana, is deportable.”

Relying on Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), the Immigration Judge concluded that the respondent is not removable based on his determination that the minimum conduct punishable under section 453.336 of the Nevada Revised Statutes involved possession of 30 grams or less of marijuana for personal use.4 Further, although the DHS sought to submit evidence to prove that the conduct underlying the respondent’s conviction actually involved possession of more than 30 grams of marijuana, the Immigration Judge concluded that Moncrieffe forbade such a “circumstance-specific” inquiry and required termination of the proceedings unless the DHS could establish that the respondent was convicted of possessing more than 30 grams of marijuana by reference to documents included in the “record of conviction” under the “modified categorical approach,” such as the judgment, charging document, or plea agreement. See Shepard v. United States, 544 U.S. 13, 26 (2005).

The Moncrieffe Court held that possession with intent to distribute marijuana under Georgia law was not an aggravated felony because the “minimum conduct” covered by the pertinent Georgia statute involved distribution of a “small amount” of marijuana for “no remuneration,” conduct that is punishable as a Federal misdemeanor under 21 U.S.C. § 841(b)(4) (2012). See Moncrieffe v. Holder, 133 S. Ct. at 1685–86, 1693−94. In arriving at that conclusion, the Court observed that “[t]he aggravated felony at issue here, ‘illicit trafficking in a controlled substance,’ is a ‘generic crim[e].’ So the categorical approach applies.” Id. at 1685 (second alteration in original) (citation omitted).

As the Immigration Judge correctly observed, 1 ounce is equivalent to approximately 28.5 grams, and thus it is theoretically possible for an individual to be convicted of violating section 453.336 of the Nevada Revised Statutes by possessing “thirty grams or less” of marijuana.

The DHS argues that the Immigration Judge’s decision is contrary to Matter of Davey, 26 I&N Dec. 37 (BIA 2012), where we interpreted section 237(a)(2)(B)(i) of the Act and held that the statutory phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime. Id. at 39−41 (citing Nijhawan v. Holder, 557 U.S. 29, 34 (2009)).

Although the DHS’s position finds explicit support in Matter of Davey, which the Immigration Judge did not discuss in his decision, the Immigration Judge concluded that his contrary position was mandated by Moncrieffe, which would supersede contrary Board precedent. Given the respondent’s pro se status and the complexity of the important legal issue at stake, we solicited amicus curiae briefing in which the Board asked amici for their views as to what impact, if any, Moncrieffe has on the continuing validity of Matter of Davey.

The BIA held that for purposes of the Immigration and Nationality Act,, the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime. In doing so, the BIA distinguished Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and reaffirmed Matter of Davey, 26 I&N Dec. 37 (BIA 2012).

In Matter of Davey, the Board concluded that an Immigration Judge’s inquiry regarding the applicability of the exception in section 237(a)(2)(B)(i) for “possession for personal use” was not subject to the evidentiary constraints of the categorical and modified categorical approaches. As the BIA explained:

The language of the section 237(a)(2)(B)(i) exception is exceedingly narrow and fact-specific. It refers not to a common generic crime but rather to a specific type of conduct (possession for one’s own use) committed on a specific number of occasions (a “single” offense) and involving a specific quantity (30 grams or less) of a specific substance (marijuana). Read in its most natural sense, this narrow language calls for what the Supreme Court has referred to as a “circumstance-specific” inquiry, that is, an inquiry into the nature of the alien’s conduct. Nijhawan v. Holder, 557 U.S. at 34. It does not suggest a focus on the formal elements of generic offenses.

Id. at 39; see also Matter of Martinez Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) (holding that section 212(h) of the Act, 8 U.S.C. § 1182(h) (2012), which contains language similar to the “possession for personal use” exception in section 237(a)(2)(B)(i), invites a circumstance-specific inquiry, rather than a categorical one); accord Popescu-Mateffy v. Holder, 678 F.3d 612, 615−17 (8th Cir. 2012) (extending deference to Martinez Espinoza under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). It concluded that Moncrieffe does not cast doubt on the validity of this holding.

The Supreme Court and the lower Federal courts have recognized that the categorical approach is inapplicable in removal proceedings when the immigration provision under review “call[s] for a ‘circumstance-specific approach’ that allows for an examination, in immigration court, of the ‘particular circumstances in which an offender committed the crime on a particular occasion.’” Moncrieffe v. Holder, 133 S. Ct. at 1691 (citation omitted); see also Nijhawan v. Holder, 557 U.S. at 38−40 (holding that the categorical approach does not apply to the determination whether a fraud offense caused a loss to victims of more than $10,000, which is required to support an aggravated felony charge under section 101(a)(43)(M)(i) of the Act); Rojas v. Att’y Gen. of U.S., 728 F.3d 203, 215−16 (3d Cir. 2013) (en banc) (holding that the categorical approach does not apply to the determination whether an offense is one “relating to a controlled substance” under section 237(a)(2)(B)(i) of the Act); Mellouli v. Holder, 719 F.3d 995, 1001 (8th Cir. 2013) (distinguishing Moncrieffe and agreeing with Matter of Davey that the “possession for personal use” exception in section 237(a)(2)(B)(i) contemplates a circumstance-specific inquiry), cert. granted on other grounds, 134 S. Ct. 2873 (2014); Varughese v. Holder, 629 F.3d 272, 274−75 (2d Cir. 2010) (per curiam) (holding that the categorical approach does not apply to the determination whether the “amount of the funds” involved in a money-laundering offense exceeded $10,000, so as to support an aggravated felony charge under section 101(a)(43)(D) of the Act), cert. denied, 132 S. Ct. 496 (2011); Bianco v. Holder, 624 F.3d 265, 270−73 (5th Cir. 2010) (holding that the categorical approach does not apply to the determination whether the victim of a crime of violence had a qualifying “domestic” relationship to the offender, so as to support a “crime of domestic violence” removal charge under section 237(a)(2)(E)(i) of the Act). For the reasons articulated in Matter of Davey, we remain convinced that the language of the “possession for personal use” exception most naturally invites a circumstance-specific inquiry, not a categorical one.

Many states have statutes relating to marijuana possession with graduated punishments based on the amount of marijuana possessed. Illinois uses grams. What about the middle ground? Under Moncrieffe, the minimum conduct punishable in this category is 14.5g or so, clearly within the exemption. This was the good news for noncitizens with minor pot convictions until this decision.

The BIA has reasserted the circumstance-specific inquiry, which permits an Immigration Judge to look beyond the statute and beyond the record of conviction, and inquire into the specific conduct of that particular defendant.

http://www.justice.gov/eoir/vll/intdec/vol26/3814.pdf

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Illinois
Drug Laws

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