(B)  All Forms of Marijuana Are Included.  The INS General Counsel ruled that conviction of simple possession of 30 grams or less of hashish or other cannabis products comes within the marijuana exception to the deportation ground.  In the context of the INA § 212(h), 8 U.S.C. § 1182(h) waiver, however, the General Counsel recommended that the INS deny a waiver to someone who possessed an amount of hashish equivalent to more than 30 grams of marijuana leaves. [1108]

 

The Ninth Circuit has held that a single conviction for being under the influence of marijuana under California Health & Safety Code § 11550 receives the benefit of this exception.[1109]  Because the INS acknowledged that hashish is in the same category as marijuana for purposes of this exception, being under the influence of hashish should qualify for this exception to the ground of deportation.  Moreover, this exception should be applicable to other offenses, such as being under the influence of marijuana or hashish, that involve possession of no more than 30 grams of marijuana.[1110]

[1108] See INS General Counsel Legal Opinion 96-3 (April 23, 1996), withdrawing previous INS General Counsel Legal Opinion 92-47 (August 9, 1992).  See also 21 U.S.C. § 802(16), defining marijuana to include all parts of the Cannabis plant, including hashish.

[1109] Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993).

[1110] See Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2001)(since a defendant convicted of possession of a controlled substance is eligible for treatment under the Federal First Offender Act, it would be absurd to conclude that someone convicted of a lesser offense such as possession of paraphernalia would not).

CONTROLLED SUBSTANCES " DEPORTATION " SINGLE MARIJUANA OFFENSE EXCEPTION " PRACTICE ADVISORY
Practice Advisory, National Immigration Project, Matter of Davey and the Categorical Approach, takes a close look at the Boards reasoning in Matter of Davey and suggests strategies to challenge the decision or limit its impact. It also contains an appendix surveying state marijuana laws and their weight requirements. http://www.nationalimmigrationproject.org/legalresources/practice_advisories/pa_MatterOfDavey&TheCategoricalApproach-16Jan2013.pdf

BIA

CATEGORICAL ANALYSIS - CONTROLLED SUBSTANCES - 30 GRAMS OF MARIJUANA EXCEPTIONS
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118 (BIA Nov. 4, 2009) (respondent may look to the specific facts of the underlying conviction to determine the amount of marijuana involved to prove, by a preponderance of the evidence, that the offense fits within the "less than 30 grams of marijuana" exception for purposes of a seeking a waiver under INA 212(h)), citing Nijhawan v. Holder, 129 S. Ct. 2294, 2298 (2009).

"We think it unlikely that Congress intended to make an aliens eligibility for a waiver dependent on such an arbitrary factor as whether the convicting jurisdiction treated drug quantity as an element. Furthermore, section 212(h) requires only that an applicants inadmissibility "relate[] to" its object of reference, namely, "a single offense of simple possession of 30 grams or less of marijuana." Given the narrow specificity of that object, it is hard to imagine any offenseapart from a few inchoate offensesthat could "relate to" it categorically without actually being a simple marijuana possession offense. Had Congress wished to make waivers available only to aliens who had committed simple marijuana possession, using a broad expression like "relates to" would have been an unlikely choice of words. Thus, we conclude that Congress envisioned something broader, specifically, a factual inquiry into whether an aliens criminal conduct bore such a close relationship to the simple possession of a minimal quantity of marijuana that it should be treated with the same degree of forbearance under the immigration laws as the simple possession offense itself."

CONTROLLED SUBSTANCES - DEPORTABILITY - EXCEPTION - PROOF MARIJUANA WAS 30 GRAMS OR LESS
Matter of Grijalva, 19 I. & N. Dec. 713 (BIA 1988) (BIA will accept a respondent's testimony as to proof of weight of marijuana possessed, for purposes of establishing that the defendant possessed 30 grams or less).

POST CONVICTION RELIEF - AMENDING RECORD OF CONVICTION TO SPECIFY AMOUNT OF MARIJUANA 30 GRAMS OR LESS
In some states, it is possible to file a joint motion with the prosecution asking the criminal court for a stipulated and amended sentence order that amends the record of conviction to specify the actual amount of marijuana to be less than 30 grams. This has been effective in immigration court to qualify the conviction for the exception to the controlled substances deportation ground and should also be effective in qualifying the conviction for a waiver of inadmissibility under INA 212(h). Thanks to Jeff Joseph.

CONTROLLED SUBSTANCES GROUND OF INADMISSIBILITY - PAULUS DEFENSE INAPPLICABLE
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118, 123 (BIA 2009) (where noncitizen bears the burden of proof, it is the respondent who must show that the substance involved is not one listed in the Federal controlled substances tables).

NOTE: This is arguably dicta.

NOTE: In the Ninth Circuit, an ambiguous record of conviction is arguably sufficient to meet the "preponderance of the evidence" burden for a noncitizen seeking relief from inadmissibility. See Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) (record of conviction that is inconclusive as to the exact nature of the controlled substance involved is sufficient to establish eligibility for cancellation of removal, placing on the government the burden of going forward to prove that the controlled substance the petitioner possessed was heroin or some other controlled substance listed under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II)); following Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129-30 (9th Cir.2007); S-Yong v. Holder, 578 F.3d 1169, 1174, 1176 (9th Cir.2009).

Fifth Circuit

CONTROLLED SUBSTANCES " DEPORTATION " EXCEPTION FOR FIRST OFFENSE POSSESSION OF SMALL AMOUNT OF MARIJUANA " BIA CANNOT ADD CONDITIONS
Flores v. Lynch, 803 F.3d 699 (5th Cir. 2015) (conviction for possession of marijuana in a school zone meets the personal use exception to deportability for a controlled substances offense; BIA erred in adding to the personal use exception a requirement that the offense be no more than the least serious offense). NOTE: This reasoning should also invalidate the possession in jail disqualification from the marijuana exception to the controlled substance ground of deportation. The Court specifically cited, and disagreed with, Matter of Moncada"Servellon, 24 I. & N. Dec. 62 (BIA 2007). The Court also found that Moncada-Servellon was not due Chevron deference, as it was contrary to the INA.

Seventh Circuit

RELIEF - 212(H) WAIVER - 30 GRAM MARIJUANA EXCEPTION - DRUG PARAPHERNALIA Escobar-Barraza v. Mukasey, 519 F.3d 388 (7th Cir. Mar. 13, 2008) (noncitizen qualified for a waiver of inadmissibility, under INA 212(h), 8 U.S.C. 1182(h), on account of a controlled substances conviction, since his conviction for possession of drug paraphernalia related to a single offense of simple possession of 30 grams or less of marijuana).

Eighth Circuit

CONTROLLED SUBSTANCES " INADMISSIBILITY " 212(h) WAIVER " PARAPHERNALIA
Popescu-Mateffy v. Holder, 678 F.3d 612 (8th Cir. May 2, 2012) (per curiam) (rejecting claim that a South Dakota possession-of-drug-paraphernalia offense relates to a single offen[s]e of 30 grams or less of marijuana[,] making him eligible for ... waiver relief pursuant to 212(h) of the INA.), following Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009).

RELIEF " WAIVERS " 212(h) WAIVER " PARAPHERNALIA
Popescu-Mateffy v. Holder, 678 F.3d 612 (8th Cir. May 2, 2012) (per curiam) (rejecting claim that a South Dakota possession-of-drug-paraphernalia offense relates to a single offen[s]e of 30 grams or less of marijuana[,] making him eligible for ... waiver relief pursuant to 212(h) of the INA.), following Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009).

Ninth Circuit

CONTROLLED SUBSTANCES - GROUND OF DEPORTATION - 30-GRAM EXCEPTION
Rodriguez v. Holder, ___ F.3d ___ (9th Cir. Aug. 23, 2010) (per curiam) (conviction for possession of less than 30 grams of marijuana does not fit personal-use exception to INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), because respondent had prior convictions for possession); cf. In re Moncada-Servellon, 24 I. & N. Dec. 62, 65 (BIA 2007) ("[T]he most natural, common-sense reading of the personal-use exception, viewed in its statutory context, is that it is directed at ameliorating the potentially harsh immigration consequences of the least serious drug violations only-that is, those involving the simple possession of small amounts of marijuana.")

CONTROLLED SUBSTANCES OFFENSES - POSSESSION OF PARAPHERNALIA - DEPORTATION GROUND - EXCEPTION FOR SINGLE OFFENSE OF POSSESSION OF MARIJUANA - WHETHER PARAPHERNALIA POSSESSION CONVICTION QUALIFIES UNDER THE EXCEPTION
Immigration counsel have been successful in persuading immigration judges that a conviction of possession of drug paraphernalia qualified under the exception to controlled substances conviction deportability for a single offense of possession of marijuana, especially prior to Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000), in two situations: (1) where the Record of Conviction affirmatively showed that the offense involved 30 grams or less of marijuana, and (2) where the Record of Conviction was silent. Since then, some Immigration Judges interpret Luu-Le to mean that a conviction of possession of paraphernalia cannot under any circumstancess fit under the exception. They appear to be incorrect, since Luu-Le does not reach the issue of the exception, finding only that the Arizona paraphernalia offense "relates to a controlled substance." The logic of Luu-Le, and the language of the INA, support the conclusion that if the paraphernalia offense involves "possession for ones own use of 30 grams or less of marijuana," then it falls within the exception. The INA does not require that the exception "be" for possession, but merely that it "involve" possession, of 30 grams or less of marijuana. See also Medina v Ashcroft, 393 F.3d 1063 (9th Cir. Jan. 4, 2005) (holding that a conviction of being under the influence of a controlled substance can fall within the exception to controlled substance conviction deportation for a conviction of a single offense of 30 grams or less of marijuana). This same logic applies to the offense of possession of marijuana paraphernalia. Thanks to Suzannah Maclay.

Other

CONTROLLED SUBSTANCES - HASHISH
In 1996, the INS General Counsel withdrew a prior legal opinion and ruled that "simple possession of 30 grams or less of marijuana" includes all other cannabis products, including hashish, that fall within the broad federal definition of marijuana provided in 21 U.S.C. 802(16).  INS General Counsel Legal Opinion 96-3 (April 23, 1996), withdrawing INS General Counsel Legal Opinion 92-47 (Aug. 19, 1992) and reaffirming memoranda dated August 11, 1994, and February 17, 1994. The General Counsel also recommended, however, that a 212(h) waiver be denied to a noncitizen possessing an amount of cannabis product the equivalent of more than 30 grams of marijuana leaves. For equivalency determinations, the General Counsel Opinion referred to 18 U.S.C. App. 4 2D1.1 (Drug Equivalency Table, Schedule I, Marijuana) used for sentencing, which states, for example, that 30 grams of cannabis resin is equivalent to 150 grams of marijuana, thirty grams of hashish oil is equivalent to 1500 grams of marijuana, thirty grams of Tetrahydocannabinol (THC) is equivalent to 5,010 grams of marijuana.  The Genco opinion noted that 6 grams of cannabis resin is the equivalent of 30 grams of marijuana leaves. A conviction for being under the influence of hashish or another cannabis product should also qualify for the marijuana exception to deportability and the 212(h) waiver of inadmissibility. See, e.g., Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993). Thanks to Ann Block for this information.

RELIEF - 212(H) WAIVER - CONTROLLED SUBSTANCES - CANNABIS PRODUCTS
Apr 96 Gen Co memo 96-5
"So long as the facts of a case satisfy the other requirements of section 212(h), you may properly interpret section 212(h) as giving you the authority to grant a waiver to an alien whose conviction was for the simple possession of 30 grams or less of any cannabis product that is within the definition found in 21 U.S.C. 802(16). Absent some unusual circumstances, however, we recommend that you limit your discretion in section 212(h) cases so that a section 212(h) waiver will be denied in most cases in which the alien possessed an amount of marijuana, other than leaves, that is the equivalent of more than 30 grams of marijuana leaves under the Federal Sentencing Guidelines, 18 U.S.C. App. 4."

RELIEF - TEMPORARY PROTECTED STATUS - CONVICTION OF POSSESSION OF 30 GRAMS OF MARIJUANA OR LESS
The TPS statute, INA 244(c)(2)(A)(iii)(I), 8 U.S.C. 1254a(c)(2)(A)(iii)(I), states the Attorney General cannot waive INA 212(a)(2)(A) grounds of inadmissibility (controlled substance and CMT), for TPS applicants. The very next paragraph, however, provides the Attorney General cannot waive inadmissibility under INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i) (reason to believe illicit drug trafficking), "except for ... a single offense of simple possession of 30 grams or less of marijuana." INA 244(c)(2)(A)(iii)(II), 8 U.S.C. 1254a(c)(2)(A)(iii)(I). "Simple possession" would not trigger inadmissibility for reason to believe, since there is no trafficking element. It could trigger inadmissibility only under INA 212(a)(2)(A). Congress must therefore be saying that TPS applicants with only a single conviction for 30 grams or less of marijuana can get TPS, unless Congress is saying that selling 30 grams or less of marijuana does not trigger inadmissibility, but possessing it does not, for TPS applicants. The regulations also provide that INA 212(a)(2)(A)(i) - the controlled substance ground of inadmissibility, cannot be waived for TPS applicants. 8 CFR 244.3(c)(1). Thanks to Bruce D. Nestor.