| Read Time: 2 minutes | Immigration

In a disappointing decision issued September 18, 2014, the Board of Immigration Appeals, has rolled back some of the gains from the SCOTUS decision in MoncrieffeMatter 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 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).

Many states have statutes relating to marijuana possession with graduated punishments based on the amount of marijuana possessed. None that I know of use grams. In North Carolina, for example, possession is categorized according to whether it was less than half an ounce, between half an ounce and one and a half ounces, and more than one and a half ounces. The lowest category, at approximately 14.25g, clearly falls within the ‘personal use’ exemption, and the highest category, at approximately 42.75g, clearly falls outside it. But 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 today.

With today’s 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.  With luck, this will head up on appeal.

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Helen represents clients facing criminal charges in both state and federal court. She is a member of the Criminal Justice Act panel of attorneys in the Middle District of North Carolina, and is admitted to practice before the Eastern, Middle and Western District Federal Courts as well as the Fourth and Eleventh Circuit Courts of Appeal.

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