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Matter of Jennifer Adassa Davey

This case is a welcome clarification of the exception to section 237(a)(2)(B)(i), the controlled-substance ground of removability, where the respondent’s conviction is for “a single offense involving possession for one’s own use of thirty grams or less of marijuana.”

The respondent in this case was convicted in 2010 of simple possession of less than 10 grams of marijuana and possession of drug paraphernalia (specifically, a plastic baggie in which the marijuana was contained) in violation of Arizona law. In bond proceedings, the DHS asserted that the convictions made the respondent removable under section 237(a)(2)(B)(i) and thus subject to mandatory detention under section 236(c)(1)(B). The Immigration Judge disagreed, finding that the respondent was not removable under section 237(a)(2)(B)(i) because her convictions fell under the simple-possession exception.

On appeal of the custody determination, the Board rejected the government’s argument that the respondent could not benefit from the exception to section 237(a)(2)(B)(i) because she had been convicted of two separate state offenses. The Board held that the term “single offense” in section 237(a)(2)(B)(i) describes the totality of an individual’s acts on a single occasion, rather than a generic crime, and thus calls for the “circumstance-specific” approach adopted by the Supreme Court in Nijhawan v. Holder, 557 U.S. 29 (2009). The Board held that the exception therefore applies to an individual convicted of more than one statutory offense so long as each offense arose from a single act of simple marijuana possession. The Board further held that the individual need not even have been convicted of simple marijuana possession to qualify for the exception: the exception applies to a conviction, such as possession of drug paraphernalia, if the acts that led to it were closely related to simple possession or ingestion of 30 grams or less of marijuana.

Lastly, the Board rejected the government’s argument that the respondent’s record of conviction left open the possibility that the marijuana baggie was possessed for purposes of sale, not possession. The Board reaffirmed prior case law holding that, to establish removability under section 237(a)(2)(B)(i), the government bears the burden of proving the conviction in question does not fall under the simple-possession exception and that an inconclusive record will not satisfy the burden.