MORADEL

Cite as 28 I&N Dec. 310 (BIA 2021) Interim Decision #4020

Matter of Jorge MORADEL, Respondent

Decided June 23, 2021

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An applicant for adjustment of status with Special Immigrant Juvenile status may, in

conjunction with a waiver under section 245(h)(2)(B) of the Immigration and

Nationality Act, 8 U.S.C. § 1255(h)(2)(B) (2018), seek to waive his or her

inadmissibility under section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) (2018), based on a single offense of simple possession of

30 grams or less of marijuana.

(2) The “simple possession” exception at section 245(h)(2)(B) calls for

a circumstance-specific inquiry into the nature of the conduct surrounding an applicant’s

simple possession offense.

FOR RESPONDENT: Anna K. Byers, Esquire, Newark, New Jersey

FOR THE DEPARTMENT OF HOMELAND SECURITY: Patricia M. Medeiros,

Assistant Chief Counsel

BEFORE: Board Panel: GREER and O’CONNOR, Appellate Immigration Judges;

LIEBMANN, Temporary Appellate Immigration Judge.

O’CONNOR, Appellate Immigration Judge:

In a decision dated November 18, 2019, an Immigration Judge found that

the respondent was ineligible for a waiver of inadmissibility under section

245(h)(2)(B) of the Immigration and Nationality Act, 8 U.S.C.

§ 1255(h)(2)(B) (2018), and thus ineligible for adjustment of status under

section 245(a) of the Act. The respondent has appealed from this decision.

The appeal will be sustained, and the record will be remanded for further

proceedings. 1

I. FACTUAL BACKGROUND

The respondent is a native and citizen of Honduras, who was born in 1995

and entered the United States without being admitted or paroled when he was

approximately 4 years old. In 2013, he was placed in removal proceedings

1

We acknowledge with appreciation the brief submitted on behalf of Public Counsel,

Catholic Legal Immigration Network, Inc., and Children’s Rights as amici curiae.

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and conceded his removability. He subsequently filed a petition to be

classified as a Special Immigrant Juvenile, which was approved. In

December 2017, the respondent was convicted of possession of 50 grams or

less of marijuana in violation of section 2C:35-10(a)(4) of the New Jersey

Statutes Annotated. Before the Immigration Judge, the respondent conceded

that his conviction rendered him inadmissible under section

212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2018), as an

alien convicted of an offense relating to a controlled substance.

The respondent sought relief from removal in the form of adjustment of

status under section 245(a) of the Act. However, the Immigration Judge

found that his inadmissibility under section 212(a)(2)(A)(i)(II) of the Act

rendered him ineligible for this relief because it prevented him from

establishing that he was “admissible to the United States” pursuant to section

245(a)(2) of the Act. The respondent asked the Immigration Judge to grant

him a waiver of inadmissibility under section 245(h)(2)(B) of the Act. That

section applies to applicants for adjustment of status with Special Immigrant

Juvenile status, and provides that

the Attorney General may waive other paragraphs of section 212(a) (other than

paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related

to a single offense of simple possession of 30 grams or less of marijuana), (3)(A),

(3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes,

family unity, or when it is otherwise in the public interest.

Section 245(h)(2)(B) of the Act (emphasis added); see also 8 C.F.R.

§ 1245.1(e)(3) (2020).

The respondent argued that his inadmissibility under section

212(a)(2)(A)(i)(II) can be waived under section 245(h)(2)(B) of the Act

because section 2C:35-10(a)(4) reaches offenses involving the simple

possession of 30 grams or less than of marijuana. However, the Immigration

Judge disagreed, concluding that the respondent was ineligible for a section

245(h)(2)(B) waiver because the “simple possession” exception in that

provision only waives an applicant’s inadmissibility under section

212(a)(2)(C) of the Act, which applies to aliens reasonably believed to have

engaged in illicit trafficking. The respondent challenges the Immigration

Judge’s interpretation on appeal. We review de novo the scope of the “simple

possession” exception in section 245(h)(2)(B) of the Act and whether that

provision can waive the respondent’s inadmissibility under section

212(a)(2)(A)(i)(II) of the Act. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020).

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II. ANALYSIS

A. Scope of 245(h)(2)(B) Waiver

We recognize that the canon of statutory construction known as the “rule

of the last antecedent” lends some support to the Immigration Judge’s

conclusion. Lockhart v. United States, 577 U.S. 347, 351 (2016) (citation

omitted). Under that rule, “a limiting clause or phrase . . . should ordinarily

be read as modifying only the noun or phrase that it immediately follows.”

Id. (citation omitted) (stating that this “rule reflects the basic intuition that

when a modifier appears at the end of a list, it is easier to apply that modifier

only to the item directly before it”); see also Barnhart v. Thomas, 540 U.S.

20, 26 (2003).

However, the last-antecedent rule is “not an absolute and can assuredly

be overcome by other indicia of meaning.” Paroline v. United States, 572

U.S. 434, 447 (2014) (citation omitted). In this regard, the structure of

section 245(h)(2)(B) indicates that the last-antecedent rule is insufficient for

understanding the scope of the “simple possession” exception. See Lockhart,

577 U.S. at 355 (acknowledging that “structural or contextual evidence may

‘rebut the last antecedent inference’” (citation omitted)). Section

245(h)(2)(B) contains a parenthetical clause listing provisions under sections

212(a)(2) and (3), and the “simple possession” exception is integrated into

this parenthetical directly after the list of provisions under section 212(a)(2)

but before the list of provisions under section 212(a)(3). This structure

suggests that the “simple possession” exception modifies all of the provisions

listed under section 212(a)(2) but does not apply to the list of provisions

under section 212(a)(3). See Jama v. ICE, 543 U.S. 335, 344 n.4 (2005)

(explaining that the last-antecedent rule would not apply where the

“modifying clause appeared . . . at the end of a single, integrated list”). 2

The plain language of section 245(h)(2)(B) of the Act also persuades us

that the last-antecedent rule is insufficient for understanding the scope of the

“simple possession” exception. See Pereira v. Sessions, 138 S. Ct. 2105,

2117 (2018) (relying on “plain language and statutory context” in

interpreting a provision of the Act). We find it significant that section

245(h)(2)(B) provides that we may “waive other paragraphs of section

212(a) (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of

such paragraph as related to a single offense of simple possession of

30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)).”

2

By contrast, the last-antecedent rule would be applicable if the “simple possession”

exception appeared with section 212(a)(2)(C) in a distinct clause that “ends with a period,

strongly suggesting that [the clause] may be understood completely without reading any

further.” Jama, 543 U.S. at 344.

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(Emphases added.) The terms “section” and “paragraph” have distinct,

technical meanings in Federal statutes. Congressional drafters are required

to break Federal statutory sections into subsections, paragraphs,

subparagraphs, clauses, and subclauses and mark each subdivision with

a specific type of symbol. Office of Legislative Counsel, U.S. House of

Representatives, House Legislative Counsel’s Manual on Drafting Style,

HLC No. 104-1, at 23–24 (1995); see also Tima v. Att’y Gen., 903 F.3d 272,

276 (3d Cir. 2018). As relevant here, congressional drafters mark

subsections with lowercase letters, paragraphs with Arabic numerals, and

subparagraphs with capital letters. Tima, 903 F.3d at 276 (citing HLC No.

104-1, at 24). So when the “simple possession” exception uses the phrase

“such paragraph,” it is clearly referring to paragraph 212(a)(2) in its

entirety—not just to subparagraph 212(a)(2)(C) of the Act, its nearest

antecedent.

Other canons of statutory construction support this conclusion. “When

several words are followed by a clause which is applicable as much to the

first and other words as to the last, the natural construction of the language

demands that the clause be read as applicable to all.” Paroline, 572 U.S.

at 447 (citation omitted). The “simple possession” exception is just as

applicable to section 212(a)(2)(A)(i)(II) as it is to sections 212(a)(2)(B) 3 and

(C) of the Act, and thus the natural reading of that exception is that it applies

with equal force to sections 212(a)(2)(A), (B), and (C) of the Act.

Furthermore, courts generally do not apply the “rule of the last

antecedent” if doing so “would require accepting ‘unlikely premises.’” Id.

(citation omitted); see also Lockhart, 577 U.S. at 355. Although the

Immigration Judge found that the “simple possession” exception only waives

inadmissibility under section 212(a)(2)(C) for suspected traffickers, illicit

trafficking has long been viewed as a significantly more serious crime than

simple possession because trafficking requires distribution, exchange, or

some form of transfer of controlled substances from one person to another.

See, e.g., Lopez v. Gonzales, 549 U.S. 47, 53 (2006) (“[O]rdinarily

‘trafficking’ means some sort of commercial dealing.”); Urena-Ramirez

v. Ashcroft, 341 F.3d 51, 57 (1st Cir. 2003) (defining “‘illicit trafficking’ as

illegally ‘trading, selling or dealing’ in specified goods” (citation omitted)).

And simple possession is by definition not illicit trafficking, since simple

possession does not involve any intent to transfer or exchange. See

Carachuri-Rosendo v. Holder, 560 U.S. 563, 574 (2010) (explaining that

a “petty simple possession offense is not typically thought of as . . . ‘illicit

trafficking’” since “commercial dealing” “is no[t] [an] element of simple

3

Section 212(a)(2)(B) of the Act renders aliens inadmissible if they are convicted of two

or more offenses with an aggregate sentence to confinement of 5 years or more, including

convictions for offenses relating to simple possession.

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possession” (citations omitted)). Thus, under the Immigration Judge’s

interpretation, an individual with Special Immigrant Juvenile status with

a single conviction for simple possession of 30 grams or less of marijuana

would rarely, if ever, qualify for a waiver under section 245(h)(2)(B), while

a person with a more serious trafficking conviction would. We conclude that

this “unlikely premise” rebuts the “the last antecedent inference.” Lockhart,

577 U.S. at 355–56 (citation omitted). 4

Because simple possession does not qualify as trafficking, the

last-antecedent rule would also effectively read the “simple possession”

exception out of section 245(h)(2)(B) of the Act. It is “one of the most basic

interpretive canons . . . that [a] statute should be construed so that effect is

given to all its provisions, so that no part will be inoperative or superfluous,

void or insignificant.” Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 824

(2018) (alteration in original) (citation omitted). The rule against surplusage

lends further support to our conclusion that the last-antecedent rule is

inapplicable and the “simple possession” exception in section 245(h)(2)(B)

4

The legislative history of similar provisions underscores our conclusion that this is an

“unlikely premise” because this history indicates that Congress intended section

245(h)(2)(B) to waive the simple possession of marijuana, and it did not intend the waiver

to apply to trafficking offenses at all. In 1981, Congress first added provisions to the Act

waiving an alien’s excludability and deportability—now inadmissibility and

deportability—for “a single offense of simple possession of 30 grams or less of

marihuana.” Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116,

§§ 2(c)(2), 4(3), 8, 95 Stat. 1611, 1611–12, 1616 (codified at former sections 101(f), 212(h),

and 241(f)(2) of the Act, 8 U.S.C. §§ 1101(f), 1182(h), and 1251(f)(2) (1982)). During

passage, the House issued a report explicitly stating that one of these provisions—

amending the definition of good moral character under former section 101(f)—was

intended to provide greater flexibility in cases involving “minor drug offenses (not

involving trafficking in narcotics).” H.R. Rep. No. 96-1301, at 25 (1980) (emphasis added);

see also id. at 51. The Senate agreed, but it narrowed the exception to a single offense of

simple possession of 30 grams or less of marijuana, and the amended language in this and

other provisions was adopted without further discussion. See 127 Cong. Rec. 23,776

(1981) (statement of Rep. McClory) (stating that the amended statutory language is “now

limited explicitly to simple possession of marihuana” and excludes “trafficking”); see also

id. at 32,008 (statement of Sen. Simpson). Although section 245(h)(2)(B) has limited

legislative history, given that Congress intended other, similarly-worded provisions to

reach only simple possession, not trafficking offenses, it is unlikely that Congress intended

the “simple possession” exception in section 245(h)(2)(B) to apply only to trafficking

offenses under section 212(a)(2)(C) but not to the simple possession of marijuana under

212(a)(2)(A)(i)(II). See Matter of Moncada, 24 I&N Dec. 62, 65–67 (BIA 2007)

(concluding, based on the same legislative history, that the similarly-worded “personal use”

exception under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), was

intended to cover “the simple possession of small amounts of marijuana”).

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applies to all of the provisions listed under section 212(a)(2), including the

ground of inadmissibility at section 212(a)(2)(A)(i)(II) of the Act.

We additionally observe that the “simple possession” exception and

a similar “personal use” exception appear in numerous places throughout the

Act. Compare sections 101(f)(3), 210(c)(2)(B)(ii)(III), 212(h),

244(c)(2)(A)(iii)(II), 245(h)(2)(B), 245A(d)(2)(B)(ii)(II) of the Act, 8 U.S.C.

§§ 1101(f)(3), 1160(c)(2)(B)(ii)(III), 1182(h), 1254a(c)(2)(A)(iii)(II),

1255(h)(2)(B), 1255a(d)(2)(B)(ii)(II) (2018) (“simple possession”), with

section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2018)

(“personal use”). 5 The broad phrasing of these exceptions also supports our

conclusion that Congress intended the “simple possession” exception in

section 245(h)(2)(B) to be applied broadly. But see section 212(h) of the Act

(waiving sections 212(a)(2)(A)(i)(II) and (B) but excluding section

212(a)(2)(C) from the waiver). We therefore hold that an applicant for

adjustment of status with Special Immigrant Juvenile status may, in

conjunction with a waiver under section 245(h)(2)(B) of the Act, seek to

waive his or her inadmissibility under section 212(a)(2)(A)(i)(II) of the Act

based on a single offense of simple possession of 30 grams or less of

marijuana. 6

B. “Simple Possession” Exception is Circumstance-Specific

Having determined that section 245(h)(2)(B) can waive an applicant’s

inadmissibility under section 212(a)(2)(A)(i)(II) of the Act arising from

a single offense of simple possession of 30 grams or less of marijuana, we

must now address how to determine whether an applicant’s offense falls

within the “simple possession” exception. The respondent argues that we

should determine whether an offense falls within this exception using the

categorical approach. The Immigration Judge found that the

circumstance-specific approach—“that is, an inquiry into the nature of the

conduct that caused [the respondent] to become inadmissible”—was

appropriate, but she did not apply this approach below. Matter of Martinez

Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) (citing Nijhawan v. Holder, 557

U.S. 29, 32 (2009)), abrogated on other grounds by Mellouli v. Lynch, 575

U.S. 798 (2015). We agree with the Immigration Judge and will remand the

5

See Esquivel v. Lynch, 803 F.3d 699, 703–05 (5th Cir. 2015) (explaining the differences

between the “simple possession” and “personal use” exceptions).

6

We leave for another day whether there are any circumstances under which the “simple

possession” exception may waive inadmissibility under section 212(a)(2)(B) or (C) of the

Act, because this case does not present that question.

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record for her to apply the circumstance-specific approach to the

respondent’s case in the first instance.

We previously held that the circumstance-specific approach applies in

determining whether, for purposes of a waiver under section 212(h), an

applicant committed “a single offense of simple possession of 30 grams or

less of marijuana.” Id. at 124–25. 7 We reasoned that this language invited

a circumstance-specific inquiry under Nijhawan because it “referenc[ed]

a specific type of conduct (simple possession) committed on a specific

number of occasions (a ‘single’ offense) and involving a specific quantity

(30 grams or less) of a specific substance (marijuana).” Id. at 124. Because

the “simple possession” exception at section 245(h)(2)(B) contains identical

language and is defined just as narrowly as the exception under section

212(h), we conclude that it also calls for a circumstance-specific inquiry into

the nature of the conduct surrounding an applicant’s simple possession

offense. See Pereira, 138 S. Ct. at 2115 (“[I]t is a normal rule of statutory

construction that identical words used in different parts of the same act are

intended to have the same meaning.” (citation omitted)). 8

The respondent counters that Nijhawan analyzed the aggravated felony

ground of removability at section 101(a)(43)(M)(i) of the Act, which renders

an alien removable for an offense that involves fraud or deceit “in which” the

loss to the victim exceeds $10,000. He argues that the phrase “in which” in

this provision indicates that the circumstance-specific approach applies,

whereas the “simple possession” exception includes the phrase “related to,”

which the Court in Mellouli found calls for a categorical inquiry.

We are unpersuaded by the respondent’s argument. Mellouli dealt with

the proper method for assessing an alien’s removability; it did not address

the distinct issue here: the proper method for determining an alien’s

eligibility for a waiver of inadmissibility. The Court has long held that the

categorical approach applies when evaluating an alien’s removability,

particularly where the ground of removability at issue requires

a “conviction.” See, e.g., Moncrieffe v. Holder, 569 U.S. 184, 190–91

7

We disagree with the respondent’s contention that Mellouli abrogated our holding in

Matter of Martinez Espinoza that section 212(h) calls for a circumstance-specific inquiry.

The Court in Mellouli specifically abrogated the portion of our decision addressing the

ground of inadmissibility under section 212(a)(2)(A)(i)(II) of the Act; it did not disagree

with, nor did it address, our discussion of 212(h). See Mellouli, 575 U.S. at 809 (citing

Matter of Martinez Espinoza, 25 I&N Dec. at 120–21).

8

We have likewise concluded that the “personal use” exception in section 237(a)(2)(B)(i)

of the Act, which contains similarly narrow language, calls for a circumstance-specific

inquiry. See Matter of Davey, 26 I&N Dec. 37, 39 (BIA 2012). We reaffirmed Davey in

Matter of Dominguez-Rodriguez, 26 I&N Dec. 408, 411–12 (BIA 2014), and a recent

circuit court decision deferred to our holdings in Dominguez-Rodriguez and Davey. See

Cardoso de Flores v. Whitaker, 915 F.3d 379, 382 (5th Cir. 2019) (per curiam).

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(2013). However, section 245(h)(2)(B) does not require a “conviction,” and

thus it does not mandate a categorical inquiry. Mellouli is distinct, moreover,

because, although the Department of Homeland Security bears the burden of

establishing removability, the respondent is required to establish his

eligibility for relief from removal, including his eligibility for a section

245(h)(2)(B) waiver. See Pereida v. Wilkinson, 141 S. Ct. 754, 760 (2021)

(stating that the Act provides that “‘[a]n alien applying for relief or protection

from removal has the burden of proof to establish’ that he ‘satisfies the

applicable eligibility requirements’ and that he ‘merits a favorable exercise

of discretion’” (alteration in original) (citation omitted)). We therefore

conclude that the “simple possession” exception under section 245(h)(2)(B)

of the Act calls for a circumstance-specific inquiry.

III. CONCLUSION

The respondent may seek a waiver of his inadmissibility under section

212(a)(2)(A)(i)(II) pursuant to section 245(h)(2)(B) of the Act. However,

we will remand the record to allow the Immigration Judge to evaluate, in the

first instance, whether he qualifies for the “simple possession” exception to

section 245(h)(2)(B) under the circumstance-specific approach. We express

no opinion regarding the outcome on remand. Accordingly, the respondent’s

appeal is sustained, and the record is remanded for further consideration of

the respondent’s application for adjustment of status and request for a waiver

of his inadmissibility.

ORDER: The respondent’s appeal is sustained.

FURTHER ORDER: The record is remanded for further proceedings

consistent with the foregoing opinion and for the entry of a new decision.

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