MONCADA

Cite as 24 I&N Dec. 62 (BIA 2007) Interim Decision #3549

In re Luis Fernando MONCADA-Servellon, Respondent

File A42 962 578 - San Pedro

Decided January 25, 2007

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The exception to deportability under section 237(a)(2)(B)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2000), for an alien convicted of possessing

30 grams or less of marijuana for his own use does not apply to an alien convicted under a

statute that has an element requiring that possession of the marijuana be in a prison or other

correctional setting.

FOR RESPONDENT: Elsa I. Martinez, Esquire, Los Angeles, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Martin C. Magat, Assistant

Chief Counsel

BEFORE: Board Panel: COLE and PAULEY, Board Members; O’LEARY, Temporary

Board Member.

PAULEY, Board Member:

In a decision dated June 30, 2005, an Immigration Judge terminated

removal proceedings against the respondent. The Department of Homeland

Security (“DHS”) has appealed from that decision. The appeal will be

sustained and the record will be remanded to the Immigration Judge for

further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Honduras and a lawful permanent

resident of the United States. In 1996, he was convicted in California of

unlawfully driving or taking a vehicle in violation of section 10851(a) of the

California Vehicle Code, a felony for which he was sentenced to 16 months

in prison. Removal proceedings commenced, and in a decision dated

November 18, 2004, an Immigration Judge determined that the respondent’s

conviction rendered him deportable from the United States under

section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(2)(A)(iii) (2000), as an alien convicted of an “aggravated felony,”

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because his crime was a “theft offense” for which the term of imprisonment

was at least 1 year. See section 101(a)(43)(G) of the Act, 8 U.S.C.

§ 1101(a)(43)(G) (2000). The respondent filed a timely appeal. While his

appeal was pending, the United States Court of Appeals for the Ninth Circuit

decided Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005), which held that

an alien’s conviction under section 10851(a) of the California Vehicle Code

did not qualify categorically as a conviction for a “theft offense” under

section 101(a)(43)(G) of the Act. Id. at 1044-46. Accordingly, in a May 25,

2005 decision, we remanded the record to the Immigration Judge for further

proceedings to consider the impact of Penuliar on the respondent’s

deportability.

On remand, the DHS lodged an additional charge of deportability against

the respondent, asserting that he was removable under section 237(a)(2)(B)(i)

of the Act as an alien convicted of a controlled substance violation on the

basis of a 2000 conviction. The record reflects that he was convicted of

possession of marijuana while in prison in violation of section 4573.6 of the

California Penal Code, a felony for which he was sentenced to 2 years’

imprisonment.

In addition, the DHS requested that the Immigration Judge hold the

respondent’s removal proceedings in abeyance pending the outcome of a

Government motion for reconsideration of the Ninth Circuit’s decision in

Penuliar. However, the Immigration Judge dismissed both charges of

deportability and terminated the removal proceedings. Specifically, he

concluded that the aggravated felony charge could not be sustained in light of

Penuliar. He further found that the controlled substance violation charge

could not be sustained because the respondent’s 2000 conviction arose from

an offense that involved possession of 30 grams or less of marijuana for his

own use, thereby placing it within the statutory exception to deportability in

section 237(a)(2)(B)(i) of the Act.

II. AGGRAVATED FELONY CHARGE

While this appeal was pending, the Supreme Court reversed the Ninth

Circuit’s reasoning in Penuliar insofar as it found that aiding and abetting a

theft is not itself a “theft offense” under section 101(a)(43)(G) of the Act.

Gonzales v. Duenas-Alvarez, ___ S. Ct. ___, No. 05-1629, 2007 WL 98723

(Jan. 17, 2007). Accordingly, it is appropriate to sustain the DHS’s appeal on

this issue and remand the record to the Immigration Judge for further

consideration of the aggravated felony charge.1

1

We observe that the Supreme Court failed to consider, as outside the scope of its grant of

certiorari, two arguments that were raised by the respondent in support of the result reached

in Penuliar.

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III. CONTROLLED SUBSTANCE VIOLATION CHARGE

As noted previously, the DHS also charged the respondent with

deportability under section 237(a)(2)(B)(i) of the Act, which provides as

follows:

Any alien who at any time after admission has been convicted of a violation of (or a

conspiracy or attempt to violate) 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)), other than a single offense involving

possession for one’s own use of thirty grams or less of marijuana, is deportable.

The factual basis for this charge was the respondent’s 2000 conviction for

violating section 4573.6 of the California Penal Code, which provides in

pertinent part:

Unauthorized possession of controlled substances in prison, camp, jail, etc.

Any person who knowingly has in his or her possession in any state prison . . . any

controlled substances, the possession of which is prohibited . . . , without being

authorized to so possess the same by the rules . . . of the prison or jail, . . . is guilty of

a felony punishable by imprisonment in the state prison for two, three, or four years.

The record in the respondent’s case reflects that his conviction arose from his

possession of not more than 28.5 grams of marijuana, a controlled substance

the possession of which is prohibited by section 11357(b) of the California

Health and Safety Code.

This appeal calls upon us to decide whether the statutory exception to

deportability for aliens convicted of “a single offense involving possession

for one’s own use of 30 grams or less of marijuana” is applicable where the

statute under which the alien was convicted has a formal element requiring

that the possession of marijuana be in a prison or other correctional setting.2

In resolving such questions of statutory interpretation, we look as always to

the plain language of the statutory provision at issue. Lamie v. U.S. Trustee,

540 U.S. 526, 534 (2004) (citing Hughes Aircraft Co. v. Jacobson, 525 U.S.

432, 438 (1999)). We do not view the language of statutory sections in

isolation; instead, “‘the words of a statute must be read in their context and

with a view to their place in the overall statutory scheme,’” since it is only by

reading the language in context that its meaning will become evident. Food

2

We thus have no occasion to opine on situations in which the above or a similar

aggravating aspect of the offense is established by virtue of a statutory penalty enhancement

for marijuana possession offenses, rather than, as here, being a formal element. See

Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000) (noting that a sentence enhancement

is the “functional equivalent of an element of a greater offense than the one covered by the

jury’s guilty verdict”).

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and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 133 (2000) (quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803,

809 (1989)); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997);

Brown v. Gardner, 513 U.S. 115, 118 (1994). Specifically, in interpreting the

Act, we should be guided to a degree by common sense, taking into account

Congress’ intention to enact “‘a symmetrical and coherent regulatory

scheme’” in which all parts are fit into an harmonious whole. Food and Drug

Administration v. Brown & Williamson Tobacco Corp., supra, at 133 (quoting

Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995)).

Citing the absence of any explicit statutory language limiting the scope of

the personal-use exception, the Immigration Judge determined that the

respondent’s conviction for possession of marijuana in prison did not

constitute a valid factual predicate for a charge of deportability under section

237(a)(2)(B)(i) of the Act. In our view, however, the most natural,

common-sense reading of the personal-use exception, viewed in its statutory

context, is that it is directed at ameliorating the potentially harsh immigration

consequences of the least serious drug violations only–that is, those involving

the simple possession of small amounts of marijuana. The personal-use

exception is not intended or understood by Congress to apply to offenses that

are significantly more serious than simple possession by virtue of other

statutory elements that greatly increase their severity. In this instance, the

respondent was convicted of possessing marijuana in prison, an offense that

is significantly more serious than “simple possession” because of the inherent

potential for violence and the threat of disorder that attends the presence of

drugs in a correctional setting.3 We note in this regard that the offense is

designated as a felony under California law, and that the respondent received

a 2-year prison sentence for his crime. The same offense is also a Federal

felony punishable by up to 5 years in prison. See 18 U.S.C. § 1791 (2000).

Again, we are mindful of our duty to construe the Act in accordance with

common sense and Congress’ intention to create a “symmetrical and coherent

regulatory scheme.” Food and Drug Administration v. Brown & Williamson

Tobacco Corp., supra, at 133. Yet the Immigration Judge’s interpretation of

the personal-use exception in this case expands the scope of the exception to

encompass very serious drug offenses, thereby creating unnecessary tension

between section 237(a)(2)(B)(i) and the many other provisions of the Act that

clearly reflect Congress’s intention to accord leniency only in cases involving

simple possession offenses.4 By construing the personal-use exception of

3

A conviction for possession of a small amount of marijuana in or near a school could raise

similar issues.

4

Section 101(f)(3) of the Act (precluding aliens convicted of drug crimes from

demonstrating “good moral character,” but carving an exception for those convicted of “a

single offense of simple possession of thirty grams or less of marihuana”); section

(continued...)

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section 237(a)(2)(B)(i) in a manner that accords with the language and

manifest purpose of the entire Act, we harmonize these disparate statutory

sections into a complementary whole.

As the aforementioned discussion makes clear, we do not consider the

language of the personal-use exception to be ambiguous as it relates to

offenses involving possession of marijuana in prison. Even were we to

assume that the language is ambiguous, however, we would nonetheless retain

our common-sense interpretation of that language because such an

interpretation finds explicit support in legislative history. Prior to 1981, aliens

convicted of controlled substance violations, including simple possession of

small amounts of marijuana, were subject to exclusion and deportation under

former sections 212(a)(23) and 241(a)(11) of the Act, 8 U.S.C. §§ 1182(a)(23)

and 1251(a)(11) (1976), and these grounds of exclusion and deportation

generally could not be waived. This changed, however, upon enactment of

sections 4(3) and 8 of the Immigration and Nationality Act Amendments of

1981, Pub. L. No. 97-116, 95 Stat. 1611, 1611-12, 1616, which amended

section 212(h) and added former 241(f)(2) of the Act, 8 U.S.C. § 1251(f)(2)

(1982), which created a discretionary waiver “for humanitarian purposes to

ameliorate the hardship that an alien’s deportation would cause to his United

States citizen or lawful permanent resident relatives when the alien had been

convicted of one simple possession of marihuana offense.” Matter of Grijalva,

19 I&N Dec. 713, 715 (BIA 1988). The House Committee Report

accompanying these amendments explained the rationale for the new

provisions as follows:

4

(...continued)

210(c)(2)(B)(ii)(III) of the Act, 8 U.S.C. § 1160(c)(2)(B)(ii)(III) (2000) (precluding aliens

who are inadmissible for drug convictions from eligibility for a waiver to adjust status under

the Special Agricultural Worker program, with the exception of those convicted of “a single

offense of simple possession of 30 grams or less of marihuana”); section 212(h) of the Act,

8 U.S.C. § 1182(h) (2000) (making a discretionary waiver of inadmissibility available to

aliens convicted of a drug crime, but only “insofar as it relates to a single offense of simple

possession of 30 grams or less of marijuana”); section 244(c)(2)(A)(iii)(II) of the Act,

8 U.S.C. § 1254a(c)(2)(A)(iii)(II) (2000) (making aliens who are inadmissible for drug

crimes ineligible for temporary protected status, but carving an exception for those

convicted of “a single offense of simple possession of thirty grams or less of marijuana”);

section 245(h)(2)(B) of the Act, 8 U.S.C. § 1255(h)(2)(B) (2000) (providing, with respect

to adjustment of status applications filed by “special immigrants,” that the Attorney General

may waive the ground of inadmissibility relating to drug crimes to the extent that it is

“related to a single offense of simple possession of 30 grams or less of marijuana”); section

245A(d)(2)(B)(ii)(II) of the Act, 8 U.S.C. § 1255a(d)(2)(B)(ii)(II) (2000) (precluding aliens

who are inadmissible for drug convictions from eligibility for a waiver to adjust status under

the legalization program, with the exception of those convicted of “a single offense of

simple possession of 30 grams or less of marihuana”).

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The second area requiring public legislation is section 212(a)(23) of the INA, which

excludes from admission to the U.S. any person (including immediate relatives of U.S.

citizens) convicted of a drug violation, no matter how minor. The private bills have

demonstrated to the committee that this ground for exclusion has resulted in undue

hardship to many U.S. citizens and the committee feels that the Attorney General

should be vested with discretionary authority to waive this ground of exclusion as it

relates to simple possession of marihuana. The Attorney General currently has

authority to waive certain other grounds of exclusion on behalf of immediate relatives

(i.e., criminal offenses, disease, and fraud). Most of the drug offenses which have

come to the attention of the subcommittee are those where exclusion is based solely

on possession of small amounts of marihuana for one’s own use, such as one

marihuana cigarette. In some cases, the records for marihuana possession have been

expunged. In the committee’s judgment, the denial of waiver authority for minor drug

offenders under existing law is unreasonable and illogical, particularly when one

considers that the Attorney General can currently exercise such authority for serious

and even violent criminal offenders.

H.R. Rep. No. 97-264, at 12 (1981), reprinted in 1981 U.S.C.C.A.N. 2577,

1981 WL 21317 (emphasis added).5 This discussion reflects that Congress

was concerned with alleviating the consequences of only “minor” offenses

involving the “simple possession” of small amounts of marijuana. It also

confirms that the concepts of “simple possession” and “possession . . . for

one’s own use” were understood by Congress to be interchangeable, rather

than contradictory.

The possession of less than 30 grams of marijuana in prison is both a State

and Federal felony. It is neither a “minor” offense nor a “simple possession”

offense. We therefore conclude that it does not fall within any exception to

the section 237(a)(2)(B)(i) ground of deportability. Accordingly, we will

sustain the DHS’s appeal with regard to the section 237(a)(2)(B)(i) charge and

remand the record for further proceedings to determine whether the

respondent is eligible for, and deserving of, any form of relief from removal.

IV. CONCLUSION

In conclusion, pursuant to the decision of the Supreme Court, we will

sustain the DHS’s appeal in regard to the section 237(a)(2)(A)(iii) aggravated

felony charge and remand the record for further consideration of that charge.

Likewise, because we conclude that the respondent’s California conviction for

possession of marijuana in prison constitutes a valid factual predicate for the

charge of deportability under section 237(a)(2)(B)(i) of the Act and does not

5

In 1990, the Act was liberalized once again to simply exclude minor marijuana possession

offenses from the grounds of deportability, as is the case under current law. See

Immigration Act of 1990, Pub. L. No. 101-649, § 602(a), 104 Stat. 4978, 5080. As a

consequence, the Government must prove that the alien’s conviction does not fall within the

exception. Medina v. Ashcroft, 393 F.3d 1063, 1065 n.5 (9th Cir. 2005) (citing Sandoval

v. INS, 240 F.3d 577, 581 (7th Cir. 2001)).

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fall within the scope of the personal-use exception, we will also sustain the

DHS’s appeal with regard to that charge. On remand, the Immigration Judge

may also consider the respondent’s eligibility for relief from removal.

ORDER: The appeal of the Department of Homeland Security is

sustained.

FURTHER ORDER: The decision of the Immigration Judge is vacated,

and 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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