Criminal Defense of Immigrants

(B)  Lesser Offenses.  A conviction for a lesser offense than possession, such as being under the influence of marijuana or another cannabis product, should also qualify for the marijuana exception to deportability and the 212(h) waiver of inadmissibility.  At least one circuit has held this to be the case.[329]

[329] Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. Jan. 4, 2005) (Nevada conviction of attempting to be under the influence of THC-carboxylic acid, a controlled substance, in violation of Nev. Rev. Stat. § § 193.330, 453.411, is not a conviction relating to a controlled substance, under INA § 237(a)(2)(B)(i), because the record of conviction does not show it was not “a single offense involving possession for one’s own use of 30 grams or less of marijuana,”; the controlled substance here is a metabolite of marijuana use and government bears the burden of proving the conviction does not fall within the exception); Arrelano-Flores v. INS, 5 F.3d 360 (9th Cir. 1993) (use of controlled substance is deportable offense, exception for use of marijuana).