SusanPai

CAVEAT - All this can be argued and I'm not going to engage in a long colloquoy about stare decisis, inter- vs. intra-circuit applicability, blah blah blah. I'll leave that to the erudite pedogogues here . I'm just passing this along to the board because it's one of those really weird areas of immigration defense with potentially fatal immigration consequences for the unknowing.

If you are an LPR and are convicted of a single, SIMPLE (meaning no enhancements like in a school zone) possession of 30 grams or less of pot , the possession charge is a waivable offense. But, if you're convicted of possession of paraphernalia, it may not be!

Here's a hypothetical:

LPR is convicted of the Felony offense of simple possession of Cannabis Leaf 30 grams or less and that is his only drug related conviction. There may be a waiver available to him.

However, if same LPR is convicted of the Gross Misdemeanor of possession of baggies or a scale, even if it his only drug related conviction, there is no waiver is available.

8 USCA 1227(a)(2)(B):

(B) Controlled Substances
(i) Conviction – any alien who at any time after admission has been convicted of a violation (or a conspiracy or attempt to violate) any law or regulation of a State, the U.S., or a foreign country relating to a controlled substance (as defined in Section 802 of Title 21 of USCA [this includes “cannabis”]), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana is deportable.

Side Note: Such a conviction triggers deportability but does not disqualify the noncitizen from cancellation of removal (unless convicted of an aggravated felony. If LPR’s felony conviction was for more than 30 grams, then even Cancellation of Removal would not apply).

Regarding the paraphernalia charge:

Misdemeanor conviction for paraphernalia is an offense “related to” a controlled substance and therefore

Section 1182(a)(2)(A)(i)(II) applies to a violation of (or attempt/conspiracy) any state, U.S. or foreign law relating to a controlled substance.

Escobar Barraza v. Mukasey (519 F.3d 388, Court of Appeals, 7th Circuit 2008)

“Pipes, roach clips and other paraphernalia designed for use with personal possession quantities of marijuana come within 1182(h) because the paraphernalia relates to the drug, and the implied quantity is under 30 grams. Scales, bagging gear, trays and lamps for growing whole plants, and other apparatus for use with larger quantities or distribution do not relate to “simple possession” and so fall outside the waiver.”

Therefore, paraphernalia such as baggies or a scale do not satisfy the standard in 1182(h)(1)(B), and therefore the Escobar Barraza (7th Circuit) court would not reach the analysis of whether a favorable exercise of discretion under 1182(h)(2) is warranted.

Or, stated another way, citing to INA vs. USC:

In Escobar-Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008). the Seventh Circuit held that an applicant for admission who had been convicted for possession of drug paraphernalia with a dusting of marijuana was eligible for a waiver of inadmissibility under INA §212(h). The court reasoned that such an offense related to a controlled substance and therefore rendered the noncitizen inadmissible under INA §212(a)(2)(A)(i)(II); however, INA §212(h) allows such an offense to be waived if it relates to a single offense of simple possession of 30 grams or less of marijuana. Because possession of paraphernalia with a mere dusting of marijuana certainly related to simple possession of a small amount of marijuana, the noncitizen was eligible for the waiver.

So, in the above examples, you would be eligible for a waiver for the single conviction on felony possession of marijuana 30 g or under but not on the misdemeanor paraphernalia charge.

Escobar-Barraza v. Mukasey has been ratified by the AAO on July 16, 2009 (Vermont Service Center file), and the BIA also in 2009 (Matter of Lael Martinez Espinoza, 25 I&N Dec. 118).

scrubbedexpat099