MARTINEZ ESPINOZA

Cite as 25 I&N Dec. 118 (BIA 2009) Interim Decision #3661

Matter of Lael MARTINEZ ESPINOZA, Respondent

File A073 829 129 - Bloomington, Minnesota

Decided November 4, 2009

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006), on the basis

of a conviction for possession or use of drug paraphernalia.

(2) An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based

on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section

212(h) of the Act if that offense “relates to a single offense of simple possession

of 30 grams or less of marijuana.”

FOR RESPONDENT: Selena Britzius-Negash, Esquire, St. Paul, Minnesota

FOR THE DEPARTMENT OF HOMELAND SECURITY: Darrin Hetfield, Assistant Chief

Counsel

BEFORE: Board Panel: FILPPU, PAULEY, and GREER, Board Members.

PAULEY, Board Member:

This case requires us to decide how drug paraphernalia offenses should

be treated under the inadmissibility provisions of the immigration law.

We hold that a conviction for possessing or using drug paraphernalia can

render an alien inadmissible, but that such inadmissibility may be waived

in appropriate cases under section 212(h) of the Immigration and Nationality

Act, 8 U.S.C. § 1182(h) (2006). As a result, we will remand the case for

further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent, a native and citizen of Mexico, concedes that

he is removable under section 212(a)(6)(A)(i) of the Act by virtue of his

unlawful presence in the United States. As relief from removal, he seeks

adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006),

a form of relief that can be granted only to an alien who demonstrates, among

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other things, that he is “admissible to the United States for permanent

residence.” Section 245(i)(2)(A) of the Act. In a decision dated March 20,

2007, the Immigration Judge found that the respondent could not satisfy this

admissibility requirement because he has a 2006 Minnesota conviction for

possessing drug paraphernalia that makes him inadmissible under section

212(a)(2)(A)(i)(II) of the Act. Furthermore, the Immigration Judge determined

that the respondent’s inadmissibility cannot be waived under section 212(h)

of the Act because his offense did not “relate[] to a single offense of simple

possession of 30 grams or less of marijuana,” the only type of drug crime for

which such a waiver is available.1 The respondent has appealed.

II. ANALYSIS

A. Inadmissibility Under Section 212(a)(2)(A)(i)(II) of the Act

The Immigration Judge found that the respondent’s drug paraphernalia

conviction makes him inadmissible under section 212(a)(2)(A)(i)(II) of the

Act, which states that “any alien convicted of . . . a violation of . . . any law

or regulation of a State, the United States, or a foreign country relating

to a controlled substance (as defined in section 102 of the Controlled

Substances Act (21 U.S.C. 802)), is inadmissible.” We agree with that

determination, which is in keeping with decisions of the United States Courts

of Appeals for the Seventh and Ninth Circuits. Estrada v. Holder, 560 F.3d

1039, 1042 (9th Cir. 2009); Escobar Barraza v. Mukasey, 519 F.3d 388,

389-90 (7th Cir. 2008); Luu-Le v. INS, 224 F.3d 911, 914-16 (9th Cir. 2000).

The respondent was convicted under section 152.092 of the Minnesota

Statutes, which provides that “[i]t is unlawful for any person knowingly

or intentionally to use or to possess drug paraphernalia.” The term “drug

paraphernalia” is defined in section 152.01(18) of the Minnesota Statutes

as follows:

Drug paraphernalia. (a) Except as otherwise provided in paragraph (b), “drug

paraphernalia” means all equipment, products, and materials of any kind, except

those items used in conjunction with permitted uses of controlled substances under

this chapter or the Uniform Controlled Substances Act, which are knowingly

or intentionally used primarily in (1) manufacturing a controlled substance,

(2) injecting, ingesting, inhaling, or otherwise introducing into the human body

a controlled substance, (3) testing the strength, effectiveness, or purity of a controlled

substance, or (4) enhancing the effect of a controlled substance.

1

The respondent is also inadmissible under section 212(a)(2)(A)(i)(I) of the Act because

he has two convictions for “crimes involving moral turpitude,” but there is no dispute that

section 212(h) operates to waive this ground of inadmissibility.

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(b) “Drug paraphernalia” does not include the possession, manufacture, delivery,

or sale of hypodermic needles or syringes in accordance with section 151.40,

subdivision 2.

The respondent was convicted after pleading guilty to a complaint charging

him with possessing a marijuana pipe.

The respondent argues that the statutes under which he was convicted

do not “relat[e] to a controlled substance” because they prohibit the possession

of “implements” rather than “controlled substances.” We disagree. The

phrase “relating to a controlled substance” is not defined in the Act, but the

“relating to” concept has a broad ordinary meaning, namely, “‘to stand in some

relation; to have bearing or concern; to pertain; refer; to bring into association

with or connection with.’” Morales v. Trans World Airlines Inc., 504 U.S.

374, 383 (1992) (quoting Blacks Law Dictionary 1158 (5th ed. 1979)).

We conclude that a law prohibiting the possession of an item intentionally

used for manufacturing, using, testing, or enhancing the effect

of a controlled substance necessarily pertains to a controlled substance.

Possessing “a pipe for smoking marijuana is a crime within the scope

of [section 212(a)(2)(A)(i)(II)] because drug paraphernalia relates to the drug

with which it is used.” Escobar Barraza v. Mukasey, 519 F.3d at 391.

The respondent also argues that because the Act contains a number

of waiver provisions that are designed to ameliorate the immigration

consequences of minor marijuana possession convictions, it would violate

the spirit and purpose of the law to find him inadmissible on the basis

of a “minor” conviction for possessing a marijuana pipe. On the contrary, the

fact that Congress enacted special waiver provisions for first-time marijuana

possession convictions presupposes that such convictions do, in fact, make

aliens inadmissible, unless waived. The language, structure, and purpose

of the Act amply support the view that Congress intended aliens to be rendered

inadmissible even for relatively “minor” marijuana convictions.

The respondent’s next argument is that his conviction is “overbroad”

because Minnesota’s definition of drug paraphernalia in section 152.01(18)(a)

covers items that are used “primarily” for manufacturing, using, testing,

or enhancing controlled substances. In the respondent’s view, the term

“primarily” connotes that a person may be convicted of possessing drug

paraphernalia even if he did not intend the object to be used for drug-related

purposes. However, that construction of the law is foreclosed by Minnesota

case law holding that “[i]tems found to have the physical characteristics

necessary to meet the statutory definition of drug paraphernalia must also

be intended for use as drug paraphernalia, that is, with controlled substances.”

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City of St. Paul v. Various Items of Drug Paraphernalia, 474 N.W.2d 413, 416

(Minn. Ct. App. 1991).

The respondent also asserts that a drug paraphernalia conviction

cannot support a finding of inadmissibility unless the paraphernalia was tied

to a specific, federally controlled substance. See Ruiz-Vidal v. Gonzales, 473

F.3d 1072 (9th Cir. 2007); Matter of Paulus, 11 I&N Dec. 274 (BIA 1965).

Because the respondent pled guilty to possessing a marijuana pipe, however,

this argument has little relevance for his own case. See 21 U.S.C. § 812(c),

Sch. I(c)(10) (2006) (listing marijuana as a federally controlled substance).

In any event, the argument lacks merit for two reasons.

First, in Paulus and Ruiz-Vidal the Government bore the burden

of proving that an alien was deportable because of a controlled substance

violation. But here the sole question is whether the respondent can meet his

burden of proving eligibility for adjustment of status. Section 291 of the Act,

8 U.S.C. § 1361 (2006); see also Matter of Rainford, 20 I&N Dec. 598, 599

(BIA 1992) (“The burden of proving eligibility for the privilege of adjustment

of status is upon the alien.”). Under the regulations, moreover, “[i]f the

evidence indicates that one or more of the grounds for mandatory denial of the

application for relief may apply, the alien shall have the burden of proving

by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R.

§ 1240.8(d) (2009). Inadmissibility to the United States is a “ground for

mandatory denial” of adjustment of status, and the respondent’s drug

paraphernalia conviction raises a legitimate question as to whether that ground

for mandatory denial “may apply” in his case. Id. Thus, the respondent

bears the burden to resolve any issue that might arise in his case by virtue

of an asymmetry between the Federal and State controlled substance

schedules.

Second, we have long drawn a distinction between crimes involving the

possession or distribution of a particular drug and those involving other

conduct associated with the drug trade in general. Thus, the requirement

of a correspondence between the Federal and State controlled substance

schedules, embraced by Matter of Paulus, 11 I&N Dec. 274, for cases

involving the possession of particular substances, has never been extended

to other contexts by the Board. For example, in Matter of Martinez-Gomez,

14 I&N Dec. 104, 105 (BIA 1972), we held that an alien’s California

conviction for opening or maintaining a place for the purpose of unlawfully

selling, giving away, or using any narcotic was a violation of a law relating

to illicit traffic in narcotic drugs under former section 241(a)(11) of the Act,

8 U.S.C. § 1251(a)(11) (1970), even though the California statute required

no showing that only Federal narcotic drugs were sold or used in the place

maintained, because the “primary purpose” of the law was “to eliminate

or control” traffic in narcotics.

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The common-sense approach of Matter of Martinez-Gomez accords with the

broad “relating to” language of current law and has largely been embraced

by the courts. For example, the Ninth Circuit held that an alien was deportable

based on his Arizona conviction for possessing drug paraphernalia, even

though Arizona’s definition of a “drug” did not “map perfectly” with the

Federal controlled substance definition, because the Arizona statute was

“plainly intended to criminalize behavior involving the production or use

of drugs—at least some of which are also covered by the federal schedules

of controlled substances.” Luu-Le v. INS, 224 F.3d at 915. Similarly, the

Seventh Circuit has held that an Illinois conviction for the knowing

distribution of a “look-alike” controlled substance was a violation of a State

law “relating to a controlled substance,” even though “look-alike” substances

are not listed on the Federal controlled substance schedules. Desai

v. Mukasey, 520 F.3d 762, 764-65 (7th Cir. 2008); see also Matter of T-C-,

7 I&N Dec. 100, 102 (BIA 1956) (holding that an alien was deportable under

former section 241(a)(11) based on his California conviction for selling

a liquid, substance, or material in lieu of a narcotic drug, after he had agreed,

offered, or consented to sell a narcotic).

The respondent’s last argument is that possessing drug paraphernalia

cannot make him inadmissible because no Federal law forbids such conduct.2

However, section 212(a)(2)(A)(i)(II) of the Act does not require that a State

offense be punishable under Federal law in order to support a charge

of inadmissibility. Section 212(a)(2)(A)(i)(II) does contain the parenthetical

phrase “as defined in section 102 of the Controlled Substances Act (21 U.S.C.

802),” but this phrase modifies only its immediate antecedent (i.e., “controlled

substance”), not the whole text of the section. See Escobar Barraza

v. Mukasey, 519 F.3d at 390 (holding that “[t]he only plausible understanding

of [section 212(a)(2)(A)(i)(II)] is that ‘as defined in [21 U.S.C. 802]’ modifies

‘controlled substance’ and nothing else”).

In conclusion, the respondent’s conviction for possessing drug paraphernalia

makes him inadmissible under section 212(a)(2)(A)(i)(II) of the Act.

As an inadmissible alien, the respondent is ineligible for adjustment of status

unless a waiver of inadmissibility is granted. The only waiver that is arguably

available to the respondent is that set forth at section 212(h) of the Act.

2

Federal law makes it a felony for any person to “(1) sell or offer for sale drug

paraphernalia; (2) to use the mails or any other facility of interstate commerce to transport

drug paraphernalia; or (3) to import or export drug paraphernalia.” 21 U.S.C. § 863(a)

(2006). However, the simple possession and use of drug paraphernalia is not federally

proscribed.

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B. Eligibility for a Section 212(h) Waiver

In pertinent part, section 212(h) provides that “[t]he Attorney General may,

in his discretion, waive the application of . . . [section 212(a)(2)(A)(i)(II)]

insofar as it relates to a single offense of simple possession of 30 grams

or less of marijuana.”3 The Board has not construed this sentence in any

precedent decision, but in some of our unpublished decisions we have

interpreted it as authorizing a waiver only if the applicant is inadmissible for

“a single offense of simple possession of 30 grams or less of marijuana.”

Upon further consideration, we conclude that such an interpretation is too

narrow.

Section 212(h) does not require an applicant to show that he was convicted

of a single marijuana possession offense, or even that he committed such

an offense; instead, it requires the applicant to show that his inadmissibility

“relates to” such an offense. As in section 212(a)(2)(A)(i)(II), the “relates to”

phrase employed in section 212(h) expresses a legislative judgment that

an alien’s inadmissibility need only stand in some natural relation to the

specific offense that is its object of reference.

Viewed in this light, section 212(h) neither categorically excludes nor

clearly encompasses all drug paraphernalia offenses. The statute does not

clearly exclude all such offenses because the possession of drug paraphernalia

can sometimes be a mere adjunct to the simple possession of a small

amount of marijuana for personal use. At the same time, “drug paraphernalia”

can also denote syringes, drug scales, volatile chemicals and equipment used

in methamphetamine labs, kits for extracting cocaine base, and a host of other

devices that bear no relationship to simple marijuana possession. Thus, while

the language of section 212(h) likely encompasses some offenses involving

possession of drug paraphernalia, it does not encompass all such offenses.

Because the scope of section 212(h) is uncertain as it relates to drug

paraphernalia offenses, we must resolve the uncertainty in a reasonable

manner. Negusie v. Holder, 129 S. Ct. 1159, 1163-64 (2009).

As noted, section 212(h) requires an applicant to demonstrate that his

inadmissibility relates to a certain kind of marijuana possession “offense,”

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

The Supreme Court has observed that “words such as . . . ‘offense’ . . .

3

We interpret section 212(h), which waives the “application of . . . [section

212(a)(2)(A)(i)(II)],” to mean that it is the ground of inadmissibility—rather than the offense

or the conviction—whose application may be waived. Cf. Matter of Balderas, 20 I&N Dec.

389, 391 (BIA 1991) (observing in the context of a section 212(c) waiver that “a grant of . . .

relief ‘waives’ the finding of excludability or deportability rather than the basis of the

excludability itself”).

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sometimes refer to a generic crime . . . and sometimes refer to the specific acts

in which an offender engaged on a specific occasion.” Nijhawan v. Holder,

129 S. Ct. 2294, 2298 (2009). How the term “offense” is used in section

212(h) is important because it affects the evidence that an Immigration Judge

can consult when seeking to connect that term to a particular alien’s conduct.

If the word “offense” denotes a generic crime, then its correspondence to the

alien’s conduct must be established “categorically,” by reference to the

elements of the crime only. Id. at 2298-99. Yet if the term refers to the alien’s

specific acts on a particular occasion, then it invites a broader inquiry into his

conduct. Id.

We conclude that section 212(h) employs the term “offense” in the latter

sense, to refer to the specific unlawful acts that made the alien inadmissible,

rather than to any generic crime. Our main reason for drawing this conclusion

is that the “offense” in question is defined so narrowly, by reference

to 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). Read in its most natural

sense, this narrow language invites what the Nijhawan Court referred

to as a “circumstance-specific” inquiry, that is, an inquiry into the nature of the

conduct that caused the applicant to become inadmissible. Id. at 2298.

We do not deny that the elements of some State drug crimes may

be defined with sufficient particularity as to encompass all the elements of the

“offense” described in section 212(h) of the Act. But there are also many

statutes—including 21 U.S.C. § 844 (2006), the Federal simple possession

statute—that are far broader in scope, applying to all controlled substances and

making no mention (in the marijuana context at least) of drug quantity.

An alien convicted under such a broad statute could never establish categorical

eligibility for a waiver because the quantity of the offending substance

would not have been a statutory element that needed to be admitted or proven

to a jury in order to convict. We think it unlikely that Congress intended

to make an alien’s eligibility for a waiver dependent on such an arbitrary factor

as whether the convicting jurisdiction treated drug quantity as an element.

Furthermore, section 212(h) requires only that an applicant’s inadmissibility

“relate[] to” its object of reference, namely, “a single offense of simple

possession of 30 grams or less of marijuana.” Given the narrow specificity

of that object, it is hard to imagine any offense—apart from a few inchoate

offenses—that could “relate to” it categorically without actually being a simple

marijuana possession offense. Had Congress wished to make waivers

available only to aliens who had committed simple marijuana possession,

using a broad expression like “relates to” would have been an unlikely choice

of words. Thus, we conclude that Congress envisioned something broader,

specifically, a factual inquiry into whether an alien’s criminal conduct bore

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such a close relationship to the simple possession of a minimal quantity

of marijuana that it should be treated with the same degree of forbearance

under the immigration laws as the simple possession offense itself.

In light of the foregoing, we conclude that an alien who is inadmissible

under section 212(a)(2)(A)(i)(II) of the Act may apply for a section 212(h)

waiver if he demonstrates by a preponderance of the evidence that the conduct

that made him inadmissible was either “a single offense of simple possession

of 30 grams or less of marijuana” or an act that “relate[d] to” such an offense.

When attempting to make such a showing, however, an applicant must bear

several caveats in mind. First, waivers are only available for offenses that

merit the same lenient treatment as simple possession. An offense does not

“relate[] to a single offense of simple possession of 30 grams or less

of marijuana” if it contains elements that make it substantially more serious

than “simple possession.” For example, possessing marijuana in a prison

or near a school may relate to marijuana possession, but such offenses do not

relate to simple possession because they are inherently more serious than the

basic crime. See Matter of Moncada, 24 I&N Dec. 62 (BIA 2007). Second,

removal proceedings are not a venue for the relitigation of criminal

prosecutions. See Matter of Ruiz-Massieu, 22 I&N Dec. 833, 844 (BIA 1999),

and cases cited therein. If the fact of conviction is sufficient to show that

an alien committed actions in addition to (or more culpable than) a single

offense of simple possession of a small amount of marijuana, then the inquiry

is at an end, and section 212(h) relief is unavailable.

We now turn to the facts of this case. The respondent is inadmissible

because of a Minnesota conviction for possessing drug paraphernalia. Under

Minnesota law, “drug paraphernalia” includes objects—such as marijuana

pipes—that can be used to introduce small quantities of marijuana into the

body. The “use” of marijuana differs from “simple possession,” but the two

concepts are closely related. As we understand it, “simple possession” denotes

the exercise of dominion or control over marijuana with an eye to its use by the

possessor. Indeed, Minnesota law—like Federal law—does not punish the

use of marijuana at all, but instead treats it as subsumed by the concept

of simple possession. This close relationship between “simple possession” and

“personal use” of marijuana is also reflected in section 237(a)(2)(B)(i)

of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), which contains an exception

to deportability for any alien convicted of “a single offense involving

possession for one’s own use of thirty grams or less of marijuana.” (Emphasis

added.) Section 237(a)(2)(B)(i), with its explicit reference to “possession for

one’s own use,” informs the meaning of the very similar language appearing

in section 212(h). Thus, when a person possesses drug paraphernalia for the

sole purpose of introducing 30 grams or less of marijuana into his body, his

conduct “relates to” the offense described in section 212(h). The respondent

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was convicted of possessing a marijuana pipe. Therefore he may be able

to prove by a preponderance of the evidence that the conduct that makes him

inadmissible was “relate[d] to,” and no more serious than, a single offense

of simple possession of 30 grams or less of marijuana.

The Immigration Judge did not give the respondent an opportunity

to make such a showing because he concluded that aliens with drug

paraphernalia convictions were categorically ineligible for section 212(h)

relief. Furthermore, because the Board is generally precluded from engaging

in factfinding, such a showing cannot be made on the appellate pleadings.

8 C.F.R. § 1003.1(d)(3)(iv) (2009). Accordingly, the record will be remanded

to the Immigration Judge so that the respondent may have an opportunity

to adduce evidence establishing his eligibility for section 212(h) relief.

III. CONCLUSION

The respondent’s Minnesota conviction for possessing drug paraphernalia

makes him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, barring

adjustment of status absent a section 212(h) waiver. To qualify for such

a waiver, the respondent must prove that the conduct that makes him

inadmissible “relates to a single offense of simple possession of 30 grams

or less of marijuana.” The respondent’s statute of conviction encompasses

some offenses that could satisfy that requirement, and the respondent’s

conviction record does not foreclose the possibility that his particular

conviction arose from such conduct. Therefore, the record will be remanded

so that the respondent may have an opportunity to prove that the conduct that

made him inadmissible “relate[d] to” such a simple possession offense.

ORDER: The appeal is dismissed in part and sustained in part.

FURTHER ORDER: The record is remanded to the Immigration Judge

for further proceedings consistent with the foregoing opinion and for the entry

of a new decision.

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