Martinez v. Mukasey, 551 F.3d 113 (2d Cir. Dec. 18, 2008) (New York conviction for criminal sale of marihuana in the fourth degree, in violation of NYPL 221.40, is not categorically a drug trafficking aggravated felony, since the offense punishes non-remunerative distribution of as little as two grams of marijuana; the minimum conduct analysis applies, and the Government, not the respondent, bears the burden of proving the conviction is an aggravated felony).



NOTE: This case implicitly disagrees with Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (respondents burden to show conviction was for distribution of a small amount of marijuana without remuneration).