BIA: “Single offense” involving marijuana centers on acts not number of convictions

By University of Denver Sturm College of Law

Nov 29, 2012

The BIA held that the exception to the controlled substances offense ground of removal for “a single offense involving possession for one’s own use of thirty grams or less of marijuana” turns on the noncitizen’s conduct rather than the number of offenses for which the noncitizen was convicted. Matter of Davey, 26 I&N Dec. 37 (BIA Oct. 23, 2012) (Cole, Pauley, and Greer, Board members). Member Pauley wrote the panel’s decision.

This case involved a noncitizen convicted of possession of marijuana, Ariz. Rev. Statute § 13-3405(A)(1), and possession of drug paraphernalia (the plastic bag in which the marijuana was contained), Ariz. Rev. Statute § 13-3415(A). Matter of Davey, 26 I&N Dec. at 38, 41. DHS initiated removal proceedings against Davey and imprisoned her claiming that she was subject to mandatory detention. Matter of Davey, 26 I&N Dec. at 38. INA § 236(c) requires detention of individuals deportable for having been convicted of a controlled substances offense. Davey challenged her mandatory detention and the immigration judge agreed, concluding that DHS had not shown that it was “substantially likely” to prove that her conviction was a CSO. Matter of Davey, 26 I&N Dec. at 38. On appeal, DHS argued that Davey’s two convictions, when combined, mean that she was convicted of a CSO because INA § 237(a)(2)(B)(i) provides an exception only for a “single offense” involving small quantities of marijuana. Matter of Davey, 26 I&N Dec. at 38.

As the BIA saw it, this raised the question of what Congress meant by the term “offense” in this context. “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….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 in which the alien possessed a small amount of marijuana for personal use.” Matter of Davey, 26 I&N Dec. at 38-39.

To determine which of these competing interpretations to adopt, the BIA looked at its interpretation of the phrase “single offense” in another context involving a lenient approach to possessing small amounts of marijuana—the waiver of inadmissibility available under INA § 212(h). The Board noted that in Matter of Martinez-Espinoza, 25 I&N Dec. 118, 124 (BIA 2009), “we concluded…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.’” Matter of Davey, 26 I&N Dec. at 39.

The IJ applied this interpretation to the § 237(a)(2)(B)(i) challenge Davey raised, and the Board agreed that this was proper. Matter of Davey, 26 I&N Dec. at 39. The § 237(a)(2)(B)(i) exception to deportability “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).” Accordingly, the Board went on, this requires a “‘‘circumstance-specific’ inquiry, that is, an inquiry into the nature of the alien’s conduct. It does not suggest a focus on the formal elements of generic offenses.” Matter of Davey, 26 I&N Dec. at 39 (citing Nijhawan v. Holder, 557 U.S. 29, 34 (2009)).

In other words, to determine whether someone was convicted of a “a single offense involving possession for one’s own use of thirty grams or less of marijuana,” the IJ should look at the circumstances that led to the conviction or convictions rather than the elements of the particular crimes for which the person was actually convicted or the number of crimes for which the person was convicted.

Because the IJ used the plea colloquy included in the record of conviction to determine that Davey’s two convictions resulted from the same activity, the Board determined that DHS was substantially unlikely to prove that she was deportable under INA § 237(a)(2)(B)(i), thus she was not subject to mandatory detention under INA § 236(c).

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