Safe Havens

(D)  Implied Exception for Possession of 30 Grams or Less of Marijuana.  There is an argument that a defendant who has been convicted of possession for personal use of 30 grams of marijuana or less is not deportable for an aggravated felony drug trafficking conviction, under the second part of the definition, because s/he would not be deportable under the controlled substances conviction ground of deportation which contains an express exception to this effect.[520]  There is no similar exception under the aggravated felony drug trafficking deportation ground[521] for being deportable for having an aggravated felony conviction based on simple possession of 30 grams or less of marijuana.  The Third Circuit treats a state conviction for possession of a controlled substance as an aggravated felony only if the defendant could have received felony treatment under federal law had s/he been prosecuted in federal court.  In developing this rule, the Third Circuit recognized that in other circuits, a defendant with a conviction of felony possession of 30 grams or less of marijuana would be deportable for having an aggravated felony conviction even though that same defendant would not be deportable as a controlled substances offender.[522]  In Matter of Yanez,[523] the BIA reversed earlier decisions interpreting when a noncitizen convicted of a controlled substances offense was deportable under the aggravated felony ground of deportability.  One of those now-rejected BIA decisions incorporated the argument that the 30 gram exception applies to aggravated felonies as part of its rationale.[524]

            The Third Circuit addressed a different aspect of the 30-gram rule.[525]  The 30-gram exception appears to apply only to the controlled substances ground of deportation, not to the aggravated felony ground.  Thus, the government would have an argument this exception does not apply at all as a defense to an NTA charging removal as an aggravated felon.  On the other hand, Congress clearly meant to exempt from deportation someone who possessed under 30 grams of marijuana, so a sympathetic court of appeals might rule the exception applied both to the controlled substances conviction and aggravated felony grounds of deportation.[526]  This argument is not as strong here as in the firearms context, however, since in that context a portion of the statute would have been made meaningless otherwise, whereas here the aggravated felony category does not automatically contain all under 30 gram possession cases.[527]

[520] INA § 237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B).

[521] INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[522] Gerbier v. Holmes, 280 F.3d 297, 312 (3d Cir. 2002).

[523] Matter of Yanez, 23 I. & N. Dec. 390 (BIA 2002).  See Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir. Nov. 2, 2004) (dismissing for lack of jurisdiction a petition for review seeking to reverse Board of Immigration Appeals’ decision that single possession offense can qualify as aggravated felony drug trafficking crime).

[524] See Matter of LG, 21 I. & N. Dec. 89 (BIA 1995).

[525] Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. Nov. 26, 2003) (recognizing in inadmissibility context that 30-gram exception was ground-specific and would not forgive inadmissibility under INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C), for reason to believe the noncitizen engaged in drug trafficking, even if possession with intent to distribute were a possessory offense, because INA § 212(h) waiver applies only to controlled substance ground of inadmissibility under INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i)).

[526] See Lemus-Rodriguez v. Ashcroft, 350 F.3d 652 (7th Cir. November 26, 2003) (sporting exception to destructive device exception applies to firearm deportation ground even though statute does not say so, since Congress obviously meant the exception to apply).

[527] Thanks to Dan Kesselbrenner for this analysis.