The Lawletter Vol 39 No 9
Suzanne Bailey, Senior Attorney, National Legal Research Group
Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(B)(i), provides that an alien is deportable if s/he has been convicted of any law "relating to a controlled substance . . . other than a single offense involving possession for one's own use of 30 grams or less of marijuana." (Emphasis added.) What approach should an Immigration Judge ("IJ") take in determining whether the alien's conviction fits within this "personal use" exception? Should the IJ be limited to a categorical inquiry, which does not permit a review of the facts underlying the particular offense but requires a comparison of the elements of the "generic" offense listed in the INA with the elements of the statutory offense of which the alien was convicted? Or should the IJ be allowed to conduct a circumstance-specific inquiry into the alien's conduct leading to the conviction?
A recent decision from the Board of Immigration Appeals ("BIA") reconciled its prior decision in In re Davey, 26 I. & N. Dec. 37 (BIA 2012), supporting the circumstance-specific inquiry, with the more recent Supreme Court decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), adopting a categorical inquiry. In re Dominguez-Rodriguez, 26 I. & N. Dec. 408 (BIA 2014). There, the court reaffirmed the holding in Davey that the language of section 237(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)(i), calls for a circumstance-specific inquiry into the alien's conduct. Thus, the removal proceeding in Domiguez-Rodriguez was remanded to the IJ for further proceedings, in which the Department of Homeland Security ("DHS") carried the burden of proving by clear and convincing evidence that the alien's criminal offense did not fall within the personal use exception.
The alien in Dominguez-Rodriguez was a lawful permanent resident who had been convicted of possession of more than one ounce of marijuana in violation of Nevada Revised Statutes section 454.336, and who was sentenced to a suspended indeterminate sentence of between 19 and 48 months and placed on probation. On the basis of this conviction, DHS put him in removal proceedings and attempted to prove that the conduct underlying the alien's conviction actually involved more than 30 grams of marijuana. The IJ determined that under the categorical inquiry approved of in Moncrieffe, the alien was not removable, because the minimum conduct punishable under the Nevada statute was less than 30 grams of marijuana. In other words, notwithstanding what conduct the alien actually engaged in, the fact that he could have been convicted under the Nevada statute for possessing less than 30 grams of marijuana was sufficient to negate the removal charges. Furthermore, the IJ barred DHS from conducting a circumstance-specific inquiry into the facts underlying the offense unless the agency could establish that the alien was convicted of possessing more than 30 grams of marijuana by reference to documents in the record of conviction.
On appeal to the BIA, the American Immigration Lawyers Association ("AILA") argued on behalf of the pro se alien that the IJ was correct and that Moncrieffe controlled. The BIA explained that whether the categorical approach applies
depends on the language of the particular immigration provision at issue. Where the immigration statute provides for the removal of an individual convicted of a "generic crime," it is undisputed that the DHS must establish that the elements of the individual's offense categorically correspond to the elements of the pertinent generic crime.
26 I. & N. Dec. at 410-11. In Moncrieffe, the Supreme Court held that the relevant statute, INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) ("illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)"), defined a "generic crime" because it incorporated by reference other criminal statutes and, thus, a categorical approach reviewing the statutory elements of the offenses was necessary. 26 I. & N. Dec. at 411 (citing Moncrieffe, 133 S. Ct. at 1691). However, the BIA continued:
The Supreme Court and the lower Federal courts have recognized . . . that the categorical approach is inapplicable in removal proceedings when the immigration provision under review calls for a circumstance-specific approach that allows for an examination, in immigration court, of the particular circumstances in which an offender committed the crime on a particular occasion.
Id. (citing cases) (internal quotations marks omitted). This approach is consistent with Davey, which had previously determined that section 237(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)(i), 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.
The BIA decision appears to allow a minitrial within the context of removal proceedings and seems to countenance a less objective assessment of the alien's criminal conviction than a simple comparison of the elements of the offense of conviction and the language of the immigration statute. No doubt this BIA decision is not the final word on whether Moncrieffe requires a categorical approach to criminal grounds for removal, and the issue inevitably will work its way through the federal courts.
