IJ Must Examine the Circumstances to Determine Marihuana Possession Exception | CLINIC

IJ Must Examine the Circumstances to Determine Marihuana Possession Exception

An LPR was convicted of a Nevada statute for possession of marihuana and placed into removal proceedings.  He was charged with violating INA § 237(a)(2)(B)(i), which is the ground of deportation for violating any controlled substance law.  That section contains an exception, however, for a “single offense involving possession for one’s own use of thirty grams or less of marihuana.”  The question before the Board was whether the IJ erred in applying the “categorical” approach set forth by the Supreme Court in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013),  which looks at the minimum conduct punishable by the underlying criminal statute, or whether the IJ should have applied a “circumstance-specific” analysis.  The Board found that its prior holding in Matter of Davey, 26 I&N Dec. 37 (BIA 2012), controls and requires the IJ to inquire into the factual circumstances surrounding the crime.  The government still has the burden of establishing that the respondent was convicted of a controlled substance offense and that his offense does not fall within the single possession of 30 grams for personal use exception. In establishing that, the government can offer any evidence that is reliable and probative.  The respondent would then be given an opportunity to rebut or challenge any of that evidence. Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014).