On September 18, 2014, the Board of Immigration Appeals (BIA), in an extensive opinion, overturned the decision of the Immigration Judge (IJ), holding that the U.S. Supreme Court case of Moncrieffe v. Holder, 133 S.Ct. 2276 (2013) does not require DHS, in charging one with removability under INA § 237(a)(2)(B)(i) (conviction of any law relating to a controlled substance), to establish that the respondent was convicted of possessing more than 30 grams of marijuana by referring to the record of conviction under the “modified categorical approach”. Instead, the BIA found that the holding in Matter of Davey, 26 I. & N. Dec. 37 (BIA 2012) (an IJ’s inquiry into the applicability of the exception found at § 237(a)(2)(B)(i) as to whether there was “possession for personal use” is not subject to the evidentiary constraints of the categorical and modified categorical approaches but calls for an inquiry into the applicant’s conduct) is not affected by the opinion in Montcrieffe, which held that possession with intent to distribute marijuana under Georgia law was not an aggravated felony because the minimum conduct covered by the statute included distribution of a “small amount” of marijuana for “no remuneration”, punishable as a Federal misdemeanor. Citing to the rule that the categorical approach is not applicable to removal cases where the INA section charged calls for a circumstance-specific approach that allows for an examination of the particular circumstances in which an offender committed a crime on a particular occasion, the BIA concluded that the plain language of the “possession for personal use” exception naturally invites a circumstance-specific inquiry, not a categorical one. Matter of Dominguez-Rodriguez, 26 I. & N. Dec. 408 (BIA 2014).
Immigration Law
