Two Crimes As A Single Offense: BIA Addresses Exception To Controlled Substance Deportability

By Susan Schreiber

Imagine you receive a frantic call from your client's family telling you that their 22-year-old LPR daughter is in ICE custody.  Apparently, their daughter was picked up by ICE after pleading guilty to possession of 10 grams of marijuana and possession of drug paraphernalia, in this case the baggie containing the marijuana.  After contacting ICE, you learn that your client is considered ineligible for bond under INA § 236(C)(1)(B) because, per ICE, she is deportable for a controlled substance offense under INA § 237(a)(2)(B). 

But is she deportable as charged?  DHS is arguing that your client isn't eligible for the exception to deportability for a single offense involving simple possession of 30 grams or less of marijuana because she was convicted of possession of drug paraphernalia as well.   Is DHS right?  Or can you argue that these two acts on a single occasion constitute a single offense? 

This was exactly the issue that the Board addressed in Matter of Davey, 26 I&N Dec. 37 (BIA 2012), issued on October 23, 2012.  Reviewing the statutory language of 237(a)(2)(B)(i), the Board noted that the exception to deportability applies to a single offense "involving" simple possession, as opposed to the offense of simple possession per se.  Possession of drug paraphernalia is covered by the exception where it is "merely an adjunct to the offender's simple possession..."  Davey at 41. And where, as here, a noncitizen is convicted of more than one statutory crime, the exception to deportability applies if all the crimes were closely related to or connected with a single incident of simple possession of 30 grams or less of marijuana. 

The Davey decision also makes reference to Matter of Martinez-Espinosa, 25 I&N Dec. 118 (BIA 2009), where the Board interpreted the "single offense" language in the context of eligibility for an INA Sec. 212(h) waiver. In Martinez-Espinosa, the Board held that a noncitizen inadmissible for a controlled substance violation based on a drug paraphernalia offense may qualify for a 212(h) waiver of inadmissibility if the offense "relates to a single offense of simple possession of 30 grams or less of marijuana."   Although the Martinez-Espinosa case did not involve multiple crimes, the reasoning of the Davey decision should apply in this context as well.