Criminal Defense of Immigrants

(B)  Less than 30 Grams of Marijuana.  For purposes of the exceptions for first time possession of “less than 30 grams of marijuana”[165] a simultaneous conviction for possession of a non-marijuana substance cannot fit within the deportation exception or be waived as a ground of inadmissibility under INA § 212(h).  Counsel can argue that simultaneous conviction of possession of marijuana on two different dates is merely reflective of possession of the same marijuana over a period of time (especially if the period is only a few days), and therefore should still be considered a “first time” possession. 

Simultaneous conviction of possession of marijuana and possession of paraphernalia or being under the influence arguably does not disqualify the noncitizen from the exception or waiver.  However, the noncitizen would still likely need to confront the independent immigration effects of the “lesser” offense.  For example, a noncitizen subject to inadmissibility would need to argue before the Immigration Judge that the simultaneous paraphernalia charge is not itself a controlled substances offense.

[165] See § 21.35, infra.