BIA Reaffirms Use of "Circumstance-Specific" Inquiry When Determining Whether "Possession for Personal Use" Exception Applies

Written by Wendy Barlow on

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Criminal convictions can significantly impact whether an alien can remain in the United States regardless of the alien's immigration status. Many aliens are under the mistaken impression that the designation of a crime as a felony or misdemeanor is what is most relevant in assessing the immigration consequences of a criminal conviction. The designation of crime as a misdemeanor or felony has little bearing on whether an alien is subject removal/deportation based upon a criminal conviction. Rather, the most relevant factor in assessing the potential immigration consequences is the actual criminal conduct for which the alien has been or will be convicted. Depending upon the language of the criminal statute under which the alien was convicted and the charge of removability/deportability lodged by the Department of Homeland Security (DHS), the immigration judge will employ the “categorical approach”, “modified categorical approach”, or “circumstance-specific” inquiry to determine whether the alien is removable/deportable as charged.

Recently, the Board of Immigration Appeals (BIA) reaffirmed the use of the “circumstance-specific” inquiry when determining whether an alien is removable/deportable as an alien who after admission has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance [ ], other than a single offense involving possession for one's own use of 30 grams or less of marijuana[.]” 8 U.S.C. §1227. See also Matter of Jonet Dominguez-Rodriguez, 26 I. & N. Dec. 408 (BIA 2014). Jonet Dominguez-Rodriguez was convicted on July 2, 2013 of “possessing more than 1 ounce of marijuana in violation of section 453.336 of the Nevada Revised Statutes[.]”Matter of Jonet Dominguez-Rodriguez, 26 I. & N. Dec. at 408-409. The Immigration Judge (IJ) “concluded that the respondent [was] not removable based on his determination that the minimum conduct punishable under section 453.336 of the Nevada Revised Statutes involved possession of 30 grams or less of marijuana for personal use.” Id. at 409. DHS had sought to introduce documents from the record of conviction in order to establish the respondent's criminal conduct involved possession of more than 30 grams of marijuana, but the IJ precluded such evidence from the administrative record. See Id. The IJ concluded the U.S. Supreme Court's decision in Moncrieffe v. Holder “forbade such 'circumstance-specific' inquiry and required termination of the proceedings unless the DHS could establish that the respondent was convicted of possessing more than 30 grams of marijuana by reference to documents included in the 'record of conviction' under the 'modified categorical approach,' such as the judgment, charging document, or plea agreement.” Id. citing Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).

However, the BIA sustained DHS's appeal, reinstated the removal proceedings, and remanded the matter to the IJ for further consideration. In reversing the IJ's termination of the removal proceedings, the BIA noted “[t]he Supreme Court and the lower Federal courts have recognized, however, that the categorical approach is inapplicable in removal proceedings when the immigration provision under review 'call[s] for a “circumstance-specific approach” that allows for an examination, in immigration court, of the “particular circumstances in which an offender committed the crime on a particular occasion.”'” Id. at 411 citing Moncrieffe, 133 S. Ct. at 1697. The BIA, relying on its prior decision in the Matter of Davey, 26 I. & N. Dec. 37 (BIA 2012), ” remain[ed] convinced that the language of the 'possession for personal use' exception most naturally invites a circumstance-specific inquiry, not a categorical one”, Id., as it requires the adjudicator to consider very explicit facts regarding the alien's criminal conduct. This is not to say the IJ may conduct a mini trial during the alien's removal proceedings every time the “possession for personal use” exception is at issue. Id. at 413. Rather, if the conviction is satisfactory “to conclusively establish all facts relevant to prove the applicability of the 'possession for personal use' exception, the Immigration Judge's inquiry is at an end, and the removal charge must be dismissed without resort to a circumstance-specific inquiry.” Id. The IJ may only employ the “circumstance-specific” inquiry “in those instances where the applicability of the exception is not determinable by reference to the elements of the offense[.]” Id. The BIA further clarified that when using the “circumstance-specific” inquiry “DHS may proffer any evidence that is reliable and probative”, Id. at 414, to establish the alien is removable/deportable as charged in the NTA. Id. Regardless of whether “categorical approach”, “modified categorical approach”, or “circumstance-specific” inquiry is employed, DHS is required to establish an alien is removable/deportable as charged in the Notice to Appear (NTA) with “clear and convincing” evidence. Id. Once DHS sustains its burden of proof, the alien would have to be given an opportunity to challenge DHS's claim and/or evidence. Id.

The take away from decisions like the Matter of Jonet Dominguez-Rodriguez is to involve an experienced immigration attorney as early as possible in the criminal and/or immigration proceedings. Prior to a criminal conviction an experienced immigration attorney may be able to provide guidance to minimize the potential immigration consequences of said criminal conviction. After an alien has been convicted of a crime, an experienced immigration attorney can attempt to terminate the charges of removability/deportability in the NTA as well as assist the alien in preparing applications for relief from removal/deportation.