Cite as 26 I&N Dec. 37 (BIA 2012) Interim Decision #3770
1 The reasons for the Immigration Judge’s decision are set forth in a bond memorandum
dated March 28, 2011.
37
Matter of Jennifer Adassa DAVEY, Respondent
Decided October 23, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(2)(B)(i) (2006), 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.
(2) An alien convicted of more than one statutory crime may be covered by the exception
to deportability for an alien convicted of “a single offense involving possession for one’s
own use of thirty grams or less of marijuana” if all the alien’s crimes were closely related
to or connected with a single incident in which the alien possessed 30 grams or less of
marijuana for his or her own use, provided that none of those crimes was inherently more
serious than simple possession.
FOR RESPONDENT: John M. Pope, Esquire, Phoenix, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Dominique J. Honea, Assistant
Chief Counsel
BEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated February 3, 2011, an Immigration Judge ordered the
respondent released from the custody of the Department of Homeland Security
(“DHS”) upon payment of a $2,000 bond.1 The DHS has appealed from that
decision, arguing that the Immigration Judge lacked jurisdiction to redetermine
the respondent’s custody status. The appeal will be dismissed.
The issue in this case is whether the respondent, a native and citizen of
Jamaica, is subject to mandatory detention during the pendency of her ongoing
removal proceedings. According to the DHS, the respondent is coveredCite as 26 I&N Dec. 37 (BIA 2012) Interim Decision #3770
38
by section 236(c)(1)(B) of the Immigration and Nationality Act, 8 U.S.C.
§ 1226(c)(1)(B) (2006), which requires the mandatory detention of “any alien
who . . . is deportable by reason of having committed any offense covered in
section [237(a)(2)(B)].” In support of that assertion, the DHS points out that
the respondent was convicted in 2010 of possessing marijuana and drug
paraphernalia in violation of sections 13-3405(A)(1) and 13-3415(A) of the
Arizona Revised Statutes, respectively. According to the DHS, that conviction
renders the respondent deportable under section 237(a)(2)(B)(i) of the Act,
8 U.S.C. § 1227(a)(2)(B)(i) (2006), as an alien convicted of a violation of State
law relating to a controlled substance.
The Immigration Judge disagreed and concluded that the respondent is “not
properly included” in the section 236(c)(1)(B) mandatory detention category
because the DHS is “substantially unlikely” to prove that her 2010 conviction
supports a section 237(a)(2)(B)(i) charge, citing Matter of Joseph, 22 I&N
Dec. 799 (BIA 1999), and 8 C.F.R. § 1003.19(h)(2)(ii) (2011). To be precise,
the Immigration Judge concluded that the respondent’s 2010 conviction
is excepted from deportability under section 237(a)(2)(B)(i) because it
was for “a single offense involving possession for one’s own use of thirty
grams or less of marijuana.” On appeal, the DHS counters that the
respondent’s two offenses—possession of marijuana and possession of drug
paraphernalia—cannot constitute a single offense for purposes of the
exception. Furthermore, the DHS maintains that the respondent may have
been convicted of possessing marijuana for sale rather than for her own use.
Under section 237(a)(2)(B)(i) of the Act, an alien with a drug conviction
is excepted from deportability if he or she was convicted of a certain kind of
marijuana possession “offense,” namely, a single offense involving possession
for one’s own use of 30 grams or less of marijuana. In interpreting this
statutory language, we are mindful that “words such as . . . ‘offense’ . . .
sometimes refer to a generic crime . . . and sometimes refer to the specific acts
in which an offender engaged on a specific occasion.” Nijhawan v. Holder,
557 U.S. 29, 33-34 (2009).
What “offense” means here is important because it determines the type of
inquiry an Immigration Judge must conduct when seeking to determine
whether an alien is covered by the exception. If the phrase “single offense”
denotes a single generic crime, then an alien convicted of more than one
statutory offense would be categorically ineligible for the exception, even if
the conduct underlying the offenses occurred simultaneously. This is the
interpretation favored by the DHS on appeal. Yet if the phrase “single
offense” refers to the totality of an alien’s specific acts on a single occasion,
then the exception could be available to an alien convicted of more than one
statutory offense, provided that each crime “involved” a single incident inCite as 26 I&N Dec. 37 (BIA 2012) Interim Decision #3770
2
Sections 212(h) and 237(a)(2)(B)(i) are not unique. As we have noted elsewhere, the Act
contains numerous provisions—most of which use language substantially similar to that at
issue here—reflecting Congress’ policy of leniency toward aliens convicted of a single
offense involving possession of a personal-use quantity of marijuana. See Matter of
Moncada, 24 I&N Dec. 62, 65-66 & n.4 (BIA 2007) (enumerating the relevant provisions).
39
which the alien possessed a small amount of marijuana for personal use. This
is the interpretation adopted by the Immigration Judge and favored by the
respondent.
We have not previously decided which understanding of the phrase “single
offense” is more appropriate when applied to section 237(a)(2)(B)(i), but we
have construed that phrase as it appears in section 212(h) of the Act, 8 U.S.C.
§ 1182(h) (2006), which provides that “[t]he Attorney General may, in his
discretion, waive the application of . . . [section 212(a)(2)(A)(i)(II)] insofar as
it relates to a single offense of simple possession of 30 grams or less of
marijuana.”2
(Emphasis added.) In Matter of Martinez Espinoza, 25 I&N Dec.
118, 124 (2009), we concluded for a variety of reasons that the term “offense”
used in section 212(h) was best understood as “refer[ring] to the specific
unlawful acts that made the alien inadmissible, rather than to any generic
crime.” Thus, we held that an alien convicted of possessing drug
paraphernalia (namely, a marijuana pipe) could qualify for a section 212(h)
waiver if the Immigration Judge determined that his “criminal conduct bore
such a close relationship to the simple possession of a minimal quantity of
marijuana that it should be treated with the same degree of forbearance under
the immigration laws as the simple possession offense itself.” Id. at 124-25.
The Immigration Judge concluded that the rationale underlying Martinez
Espinoza applied with the same force in the context of section 237(a)(2)(B)(i)
of the Act. Thus, although the respondent was convicted of two generic
offenses with discrete elements (namely, possession of marijuana and
possession of drug paraphernalia), the Immigration Judge concluded that those
two generic crimes amounted to a “single offense” in the relevant sense
because they were constituent parts of a single act of simple marijuana
possession. We agree with that interpretation.
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.Cite as 26 I&N Dec. 37 (BIA 2012) Interim Decision #3770
3A crime cannot “involve” simple possession of a personal-use quantity of marijuana unless
it bears a direct relationship to that conduct. Furthermore, it would defeat the purpose of
the exception to interpret it as encompassing an offense that is inherently more seriousthan
simple possession, such as distributing, manufacturing, transporting, or being under the
influence of marijuana, or possessing marijuana in a prison or near a school. See Matter of
Moncada, 24 I&N Dec. 62; see also Matter of Martinez Espinoza, 25 I&N Dec. at 125.
40
Furthermore, the plain language of section 237(a)(2)(B)(i) does not limit
the availability of the exception to aliens convicted of simple marijuana
possession per se. Rather, it makes the exception available to an alien whose
conviction was for a single offense “involving” the simple possession of
30 grams or less of marijuana. Had Congress wished to make the exception
available only to those convicted of generic marijuana possession, using an
expression like “involving” (as opposed to “of,” for instance) would be an
unlikely choice of words. Indeed, in analogous contexts, the Federal courts of
appeals have construed the term “involving” broadly, to encompass any
offense or act that is closely related or closely connected to its object of
reference.
For instance, 18 U.S.C. § 924(e)(2)(A)(ii) (2006) defines the term “serious
drug offense” to mean, in pertinent part, “an offense under State law, involving
manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance.” (Emphasis added.) In deciding whether
particular predicate offenses “involved” the distribution of controlled
substances under this provision, courts have not required that the offense
include distribution as a formal element. Rather, they have required only that
the offender’s conduct be closely “related to or connected with” the offending
activity. United States v. King, 325 F.3d 110, 113 (2d Cir. 2003); see also,
e.g., United States v. Bynum, 669 F.3d 880, 886-87 & n.4 (8th Cir. 2012)
(holding that knowingly offering to sell drugs in violation of Minnesota law
“involves” distribution under § 924(e)(2)(A)(ii)); United States v. Gibbs, 656
F.3d 180, 184, 189 (3d Cir. 2011) (holding that wearing body armor while
committing a felony in violation of Delaware law “involves” distribution
under § 924(e)(2)(A)(ii) where the underlying felony was a drug sale);
United States v. McKenney, 450 F.3d 39, 43, 45 (1st Cir. 2006) (holding
that conspiracy to possess or manufacture a controlled substance for sale
in violation of Rhode Island law “involves” drug distribution under
§ 924(e)(2)(A)(ii)).
Likewise, we conclude that for purposes of section 237(a)(2)(B)(i), a crime
“involves” possession of 30 grams or less of marijuana for personal use if the
particular acts that led to the alien’s conviction were closely related to such
conduct.3 The possession of drug paraphernalia would thus be covered by the
exception where the paraphernalia in question was merely an adjunct to theCite as 26 I&N Dec. 37 (BIA 2012) Interim Decision #3770
41
offender’s simple possession or ingestion of 30 grams or less of marijuana.
We can conceive of no reason why Congress would except an alien from
deportability for actually possessing a small amount of marijuana for personal
use, yet deny such leniency simply because, for example, the marijuana was
found in a baggie.
The possession of drug paraphernalia would not “involve” simple
marijuana possession, however, if the paraphernalia in question was associated
with the manufacture, smuggling, or distribution of marijuana or with the
possession of a drug other than marijuana. Because the term “drug
paraphernalia” covers a broad range of objects, many of which have no
relationship to simple drug possession, the inquiry will necessarily be fact
intensive. An alien who possessed a marijuana pipe or rolling papers may be
covered by the exception; an alien who possessed a drug scale or a hypodermic
syringe would not.
Applying the foregoing standards to the present facts, we find no error in
the Immigration Judge’s determination that the respondent is covered by the
section 237(a)(2)(B)(i) exception. Looking to the respondent’s plea colloquy
transcript, the Immigration Judge found that the respondent’s two offenses of
conviction were committed simultaneously, that they involved the simple
possession of less than 10 grams of marijuana, and that the drug paraphernalia
the respondent possessed was a plastic baggie in which the marijuana was
contained. Those facts describe a “single offense involving possession for
one’s own use of thirty grams or less of marijuana.” Section 237(a)(2)(B)(i)
of the Act.
The DHS argues that the respondent’s conviction record contains no clear
judicial finding that the respondent possessed the marijuana for personal use,
therebyleaving open the possibilitythat the baggie of marijuana was possessed
for the purpose of sale. We find that argument unpersuasive. The relevant
question in a Joseph hearing is whether the DHS is substantially unlikely to
prove a charge that would justify mandatory detention. Matter of Joseph,
22 I&N Dec. at 800. To prove a charge under section 237(a)(2)(B)(i), the
DHS bears the burden of proving that the respondent’s conviction does not fall
within the “possession for personal use” exception. See Matter of Moncada,
24 I&N Dec. 62, 67 n.5 (BIA 2007). It cannot meet that burden unless the
record establishes that the respondent possessed marijuana for some reason
other than personal use; an inconclusive record is not sufficient.
In this instance, the Immigration Judge issued his bond order after he had
alreadyconsidered the entiretyof the DHS’s evidence at a removal hearing and
dismissed the section 237(a)(2)(B)(i) charge on the merits. This is therefore
not a case where the Immigration Judge was obliged to assess the DHS’s
likelihood of success on the basis of an incomplete record. See Matter of
Joseph, 22 I&N Dec. at 806-07 (noting that when the propriety of mandatoryCite as 26 I&N Dec. 37 (BIA 2012) Interim Decision #3770
42
detention is being reviewed after a removal charge has been dismissed on the
merits, the Immigration Judge is entitled to rely on that merits determination
when assessing the DHS’s likelihood of success).
In light of the foregoing, we see no basis to disturb the Immigration
Judge’s determination that the DHS is substantially unlikely to prove the
respondent’s deportability under section 237(a)(2)(B)(i) of the Act. Thus, the
Immigration Judge properly exercised jurisdiction over the respondent’s
request for a change in his custody status. Furthermore, the DHS does not
challenge the Immigration Judge’s conclusion that a $2,000 bond is reasonably
calculated to ensure the respondent’s appearance for future hearings.
Accordingly, the DHS’s appeal will be dismissed.
ORDER: The appeal of the Department of Homeland Security is
dismissed.