In re Rodriguez
| Decision Date | 14 February 2012 |
| Docket Number | Interim Decision #3741 |
| Parties | Matter of Wilmer Rodrigo CASTRO RODRIGUEZ, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
An alien convicted of possession of marijuana with intent to distribute under State law has the burden to show that the offense is not an aggravated felony because it involved a "small amount of marihuana for no remuneration" within the meaning of 21 U.S.C. § 841(b)(4) (2006), which the alien may establish by presenting evidence outside of the record of conviction. Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), clarified.
FOR RESPONDENT: Nikolay Iordanov, Esquire, Falls Church, Virginia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam L. Berg, Assistant Chief Counsel
BEFORE: Board Panel: PAULEY, MULLANE, and GUENDELSBERGER Board Members.
PAULEY, Board Member:
In a decision dated on July 26, 2011, an Immigration Judge found the respondent removable as an alien convicted of a controlled substance violation under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), but not as an aggravated felon under section 237(a)(2)(A)(iii), and granted him cancellation of removal pursuant to section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2006). The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be dismissed in part and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is a native and citizen of Bolivia and lawful permanent resident of the United States. On October 10, 2010, he was convicted in the General District Court of Montgomery County, Virginia, of the misdemeanor offense of possession with the intent to give or distribute less than one-half ounce of marijuana in violation of section 18.2-248.1(a)(1) of the VirginiaRevised Statutes, for which he was fined and sentenced to 12 months of imprisonment, with 11 months suspended.1
Based on this conviction for a controlled substance violation, the Immigration Judge found that the respondent was removable under section 237(a)(2)(B)(i) of the Act. However, he held that the respondent's conviction was not for an aggravated felony under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2006), which includes within the aggravated felony definition "illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act)" ("CSA"). In this regard, the Immigration Judge noted that under Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), if the respondent proved that his State law conviction for distribution of marijuana involved a "small" quantity of the drug and that he did not intend to distribute it for remuneration, the offense would not be an aggravated felony for immigration purposes because of the mitigating exception in 21 U.S.C. § 841(b)(4) (2006).2
The Immigration Judge found that the respondent was convicted of possession of less than one-half ounce of marijuana and that he credibly testified regarding his acquisition of the marijuana at a party for $100. Considering this evidence, the Immigration Judge determined that the respondent had shown that he was convicted of possessing a "small" amount of marijuana "for no remuneration," which would be a misdemeanor under the CSA. Finding that the respondent successfully demonstrated that his conviction was not for an aggravated felony, the Immigration Judge concludedthat he was not ineligible for cancellation of removal under section 240A(a)(3) of the Act. The Immigration Judge determined that the respondent was eligible for relief and granted his application in the exercise of discretion.
The DHS does not contest the Immigration Judge's determination as to discretion but argues that he misapplied Matter of Aruna, under which the respondent's offense should categorically qualify as a drug trafficking aggravated felony. Specifically, the DHS contends that (1) the Immigration Judge erred in considering evidence outside of the record of conviction in reaching his conclusion and (2) even assuming that such evidence was properly consulted, it did not show that the respondent possessed a small amount of marijuana for no remuneration.
The question before us is whether an alien may present evidence outside of the record of conviction to show that a State law conviction for possession of marijuana with intent to distribute was not for an aggravated felony because the offense involved a "small" amount of the drug and the alien intended its distribution to be "for no remuneration" within the meaning of 21 U.S.C. § 841(b)(4). If, as we conclude, the answer is in the affirmative, we must further decide if the Immigration Judge correctly determined that the respondent has made this showing based on the facts of his case.
The first issue is a question of law, which we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2011). The second issue is more complicated with respect to the standard of review to be applied. We conclude that the determination whether the amount of marijuana is "small" is a mixed question of fact and law that we review de novo, but that the issue whether the alien possessed marijuana with the intent to give or distribute the drug for no remuneration is a question of fact that we review for clear error. 8 C.F.R. § 1003.1(d)(3)(i).
Section 101(a)(43) of the Act defines the term "aggravated felony" to include a "drug trafficking crime" as defined in 18 U.S.C. § 924(c) (2006), "whether in violation of Federal or State law." In turn, 18 U.S.C. § 924(c)(2) defines a "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)." The United States Supreme Court has held that "a state offense constitutes a 'felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under that federal law." Lopez v. Gonzales, 549 U.S. 47, 60 (2006). Thus, for a State drug offense to qualify as a "drug trafficking crime" and, by extension, an aggravated felony, it must correspondto an offense that carries a maximum term of imprisonment exceeding 1 year under the CSA. Id. at 56 & n.7.
In Matter of Aruna, we addressed the question whether the respondent's 2007 conviction for conspiracy to distribute marijuana in violation of Maryland law was for an offense that "proscribes conduct punishable as a felony" under the CSA within the meaning of Lopez v. Gonzales, 549 U.S. at 60, such that it may be considered a "drug trafficking crime" and, by extension, an "aggravated felony." We held that absent controlling precedent to the contrary, a State law misdemeanor offense of conspiracy to distribute marijuana qualifies as an "aggravated felony" under section 101(a)(43)(B) of the Act where its elements correspond to the elements of the Federal felony offense of conspiracy to distribute an indeterminate quantity of marijuana, as defined by 21 U.S.C. §§ 841(a)(1) and (b)(1)(D).
The respondent in Matter of Aruna argued that marijuana distribution under Maryland law did not correspond to a Federal felony because 21 U.S.C. § 841(b)(4) provides that an offender who distributes a "small amount of marihuana for no remuneration" is to be treated as if he committed simple possession, which is a Federal misdemeanor under 21 U.S.C. § 844(a) (2000). In rejecting this argument, we noted that 21 U.S.C. § 841(b)(4) does not define "elements" of the "offense" of "misdemeanor marijuana distribution," as the respondent asserted. Rather, it merely defines a "mitigating exception" to the otherwise applicable 5-year statutory maximum. See United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003).
Moreover, as with an affirmative defense, it is ultimately the defendant who bears the burden of proving the additional facts that trigger this mitigating exception, namely, the "smallness" of the amount of marijuana and the absence of remuneration. Id. at 671 (). Thus we concluded that facts that must be proved by the accused to support a reduced sentence do not constitute "elements" of an offense for purposes of the categorical analysis. We therefore held that the respondent's Maryland offense qualified as a "drug trafficking crime" and, by extension, an aggravated felony, because its elements corresponded to the elements of the Federal felony of conspiracy to distribute an indeterminate quantity of marijuana.
As noted above, the facts that must be proved to determine that a defendant's amount of marijuana is "small" and involved distribution for no remuneration are not elements of the offense. Therefore the categorical approach is not applicable to a determination of these facts. Rather, suchan inquiry is of a "circumstance-specific" nature. Nijhawan v. Holder, 557 U.S. 29 (2009); see also Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007). Thus, we conclude, as did the Immigration Judge, that an alien in Immigration Court may offer the "affirmative defense" of "a small amount of marihuana for no remuneration" when the law of the convicting jurisdiction does not have a "mitigating exception" comparable to that in 21 U.S.C. § 841(b)(4). See Matter of Aruna, 24 I&N Dec. at 457-58. Accordingly, we answer the first question before us by rejecting the DHS's position and holding that the respondent may attempt to prove by any probative evidence, including evidence outside of the record of conviction such as police and laboratory reports, that he or she is not an aggravated felon under section 101(a)(43)(B) of the Act because the underlying drug trafficking offense...
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