(E)  Post-Conviction Relief.  It may be possible for criminal counsel to file a motion to amend the record of conviction to specify the amount of marijuana involved to be less than 30 grams.  If successful, this should be effective in immigration court to qualify for the exception to deportability or the waiver of inadmissibility under INA § 212(h).[332]

[332] Thanks to Jeff Joseph.

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).

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 - DEPORTABILITY - BURDEN
Medina v. Ashcroft, 393 F.3d 1063, 1065 n.5 (9th Cir. 2005) (government bears the burden of proving that the possession of 30 grams or less of marijuana does not apply), agreeing with Sandoval v. INS, 240 F.3d 577, 581 (7th Cir.2001).

CONTROLLED SUBSTANCES OFFENSES - DEPORTABILITY - BURDEN
Medina v. Ashcroft, 393 F.3d 1063, 1065 n.5 (9th Cir. 2005) (government bears the burden of proving that the possession of 30 grams or less of marijuana does not apply), agreeing with Sandoval v. INS, 240 F.3d 577, 581 (7th Cir.2001).

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

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.

CONTROLLED SUBSTANCES - SINGLE OFFENSE EXCEPTION
A noncitizen who has pre-trial diversion (no plea entered) for a drug charge does not have a conviction for immigration purposes. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). If that person later pleads guilty to simple possession of 30 grams or less of marijuana, the noncitizen comes within the exception to deportability under INA 237(a)(2)(B), 8 U.S.C. 1227(a)(2)(B) for having a single offense.

The "single offense" language creates an exception to the "has been convicted" language in this statute. Since pre-trial diversion is not a conviction, the guilty plea to marijuana possession would still seem to come within the language of the single-offense exception. The Ninth Circuit in de Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007), held that a noncitizen with a prior grant of pre-trial diversion is not eligible for treatment under Federal First Offender Act, 18 U.S.C. 3607(a), analogue, which makes the plea in the second case a conviction for immigration purposes. In de Jesus Melendez, however, the Federal First Offender Act itself bars eligibility for one who had previously been treated under 18 U.S.C. 3607, and this statute itself has a pretrial diversion provision. The fact that a pre-trial non-conviction diversion bars effective expungement does not mean that it would be considered a first "offense" under the first-offense exception for 30 grams or less of marijuana. Any ambiguity in the statute must be interpreted in favor of the noncitizen in deportation proceedings. Thanks to Dan Kesselbrenner.

RELIEF - WAIVERS - 212(H) WAIVER - CONTROLLED SUBSTANCES WAIVER ARGUABLY EXTENDS FROM POSSESSION OF MARIJUANA TO POSSESSION OF PARAPHERNALIA
A waiver of inadmissibility, under INA 212(h), for a single offense of possession of 30 grams or less of marijuana, should extend to waive a conviction of possession of drug paraphernalia. This argument is by analogy to the Ninth Circuit's extension of Lujan-Almendariz v. INS, 222 F.3d 728 (9th Cir. 2000) exception to "lesser offenses" like paraphernalia to similarly extending the marijuana 30-gram exception to lesser offenses such as possession of paraphernalia as well. See Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000). See also Escobar Barraza v. Mukasey 519 F.3d 388 (7th Cir 2008). Thanks to Holly S. Cooper and Jonathan Moore.