Matter of Espinoza
| Decision Date | 04 November 2009 |
| Docket Number | Interim Decision No. 3661.,File A073 829 129. |
| Citation | 25 I&N Dec. 118 |
| Parties | Matter of Lael MARTINEZ ESPINOZA, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
This case requires us to decide how drug paraphernalia offenses should be treated under the inadmissibility provisions of the immigration law. We hold that a conviction for possessing or using drug paraphernalia can render an alien inadmissible, but that such inadmissibility may be waived in appropriate cases under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006). As a result, we will remand the case for further proceedings.
The respondent, a native and citizen of Mexico, concedes that he is removable under section 212(a)(6)(A)(i) of the Act by virtue of his unlawful presence in the United States. As relief from removal, he seeks adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006), a form of relief that can be granted only to an alien who demonstrates, among other things, that he is "admissible to the United States for permanent residence." Section 245(i)(2)(A) of the Act. In a decision dated March 20, 2007, the Immigration Judge found that the respondent could not satisfy this admissibility requirement because he has a 2006 Minnesota conviction for possessing drug paraphernalia that makes him inadmissible under section 212(a)(2)(A)(i)(II) of the Act. Furthermore, the Immigration Judge determined that the respondent's inadmissibility cannot be waived under section 212(h) of the Act because his offense did not "relate[] to a single offense of simple possession of 30 grams or less of marijuana," the only type of drug crime for which such a waiver is available.1 The respondent has appealed.
The Immigration Judge found that the respondent's drug paraphernalia conviction makes him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, which states that "any alien convicted of . . . a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible." We agree with that determination, which is in keeping with decisions of the United States Courts of Appeals for the Seventh and Ninth Circuits. Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir. 2009); Escobar Barraza v. Mukasey, 519 F.3d 388, 389-90 (7th Cir. 2008); Luu-Le v. INS, 224 F.3d 911, 914-16 (9th Cir. 2000).
The respondent was convicted under section 152.092 of the Minnesota Statutes, which provides that "[i]t is unlawful for any person knowingly or intentionally to use or to possess drug paraphernalia." The term "drug paraphernalia" is defined in section 152.01(18) of the Minnesota Statutes as follows:
Drug paraphernalia. (a) Except as otherwise provided in paragraph (b), "drug paraphernalia" means all equipment, products, and materials of any kind, except those items used in conjunction with permitted uses of controlled substances under this chapter or the Uniform Controlled Substances Act, which are knowingly or intentionally used primarily in (1) manufacturing a controlled substance, (2) injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, (3) testing the strength, effectiveness, or purity of a controlled substance, or (4) enhancing the effect of a controlled substance.
(b) "Drug paraphernalia" does not include the possession, manufacture, delivery, or sale of hypodermic needles or syringes in accordance with section 151.40, subdivision 2.
The respondent was convicted after pleading guilty to a complaint charging him with possessing a marijuana pipe.
The respondent argues that the statutes under which he was convicted do not "relat[e] to a controlled substance" because they prohibit the possession of "implements" rather than "controlled substances." We disagree. The phrase "relating to a controlled substance" is not defined in the Act, but the "relating to" concept has a broad ordinary meaning, namely, "`to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.'" Morales v. Trans World Airlines Inc., 504 U.S. 374, 383 (1992) (quoting Blacks Law Dictionary 1158 (5th ed. 1979)). We conclude that a law prohibiting the possession of an item intentionally used for manufacturing, using, testing, or enhancing the effect of a controlled substance necessarily pertains to a controlled substance. Possessing "a pipe for smoking marijuana is a crime within the scope of [section 212(a)(2)(A)(i)(II)] because drug paraphernalia relates to the drug with which it is used." Escobar Barraza v. Mukasey, 519 F.3d at 391.
The respondent also argues that because the Act contains a number of waiver provisions that are designed to ameliorate the immigration consequences of minor marijuana possession convictions, it would violate the spirit and purpose of the law to find him inadmissible on the basis of a "minor" conviction for possessing a marijuana pipe. On the contrary, the fact that Congress enacted special waiver provisions for first-time marijuana possession convictions presupposes that such convictions do, in fact, make aliens inadmissible, unless waived. The language, structure, and purpose of the Act amply support the view that Congress intended aliens to be rendered inadmissible even for relatively "minor" marijuana convictions.
The respondent's next argument is that his conviction is "overbroad" because Minnesota's definition of drug paraphernalia in section 152.01(18)(a) covers items that are used "primarily" for manufacturing, using, testing, or enhancing controlled substances. In the respondent's view, the term "primarily" connotes that a person may be convicted of possessing drug paraphernalia even if he did not intend the object to be used for drug-related purposes. However, that construction of the law is foreclosed by Minnesota case law holding that "[i]tems found to have the physical characteristics necessary to meet the statutory definition of drug paraphernalia must also be intended for use as drug paraphernalia, that is, with controlled substances." City of St. Paul v. Various Items of Drug Paraphernalia, 474 N.W.2d 413, 416 (Minn. Ct. App. 1991).
The respondent also asserts that a drug paraphernalia conviction cannot support a finding of inadmissibility unless the paraphernalia was tied to a specific, federally controlled substance. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007); Matter of Paulus, 11 I&N Dec. 274 (BIA 1965). Because the respondent pled guilty to possessing a marijuana pipe, however, this argument has little relevance for his own case. See 21 U.S.C. § 812(c), Sch. I(c)(10) (2006) (). In any event, the argument lacks merit for two reasons.
First, in Paulus and Ruiz-Vidal the Government bore the burden of proving that an alien was deportable because of a controlled substance violation. But here the sole question is whether the respondent can meet his burden of proving eligibility for adjustment of status. Section 291 of the Act, 8 U.S.C. § 1361 (2006); see also Matter of Rainford, 20 I&N Dec. 598, 599 (BIA 1992) (). Under the regulations, moreover, "[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply." 8 C.F.R. § 1240.8(d) (2009). Inadmissibility to the United States is a "ground for mandatory denial" of adjustment of status, and the respondent's drug paraphernalia conviction raises a legitimate question as to whether that ground for mandatory denial "may apply" in his case. Id. Thus, the respondent bears the burden to resolve any issue that might arise in his case by virtue of an asymmetry between the Federal and State controlled substance schedules.
Second, we have long drawn a distinction between crimes involving the possession or distribution of a particular drug and those involving other conduct associated with the drug trade in general. Thus, the requirement of a correspondence between the Federal and State controlled substance schedules, embraced by Matter of Paulus, 11 I&N Dec. 274, for cases involving the possession of particular substances, has never been extended to other contexts by the Board. For example, in Matter of Martinez-Gomez, 14 I&N Dec. 104, 105 (BIA 1972), we held that an alien's California conviction for opening or maintaining a place for the purpose of unlawfully selling, giving away, or using any narcotic was a violation of a law relating to illicit traffic in narcotic drugs under former section 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11) (1970), even though the California statute required no showing that only Federal narcotic drugs were sold or used in the place maintained, because the ...
To continue reading
Request your trial