Criminal Defense of Immigrants

(E)  Implied Exception for Possession of 30 Grams or Less of Marijuana.  A defendant who has been convicted of possession for personal use of 30 grams of marijuana or less arguably should not be deportable as an aggravated felon because s/he would not be deportable under the controlled substances conviction ground of deportation which contains an express exception to this effect.[620]  The aggravated felony drug trafficking definition contains no such exception, thus the government can argue that the 30-gram exception should not work 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 30 grams or less of marijuana, so a sympathetic court of appeals might rule that the exception applied both to the aggravated felony ground of deportation as well as the controlled substances conviction ground.[621] 

In Lopez, the United State Supreme Court noted that several states specifically punish possession of less than 30 grams of marijuana as a felony, making the point that failing to follow the hypothetical federal felony approach would           mean that a person could be considered an aggravated felon, but at the same time would ironically qualify for the 30-gram exception to deportability under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).[622]

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

[621] See Lemus-Rodriguez v. Ashcroft, 350 F.3d 652 (7th Cir. Nov. 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).

[622] Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625, 633 (Dec. 5, 2006).