quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 Paraphernalia and the 30 grams marijuana benefit. Where a paraphernalia offense relates to a single offense of simple possession of 30 grams or less of marijuana – e.g., possession of a marijuana pipe – it will receive the same benefits as the simple possession offense. 114 A single conviction for simple possession of 30 grams or less of marijuana is an exception to the controlled substance conviction deportation ground, and is eligible for treatment under the § 212(h) waiver for inadmissibility based on conviction of a controlled substance. See further discussion in Part C.2, infra. 2. Plead to Accessory after the Fact Accessory is a good alternate plea to a drug offense. Being an accessory to a drug offense is not considered an offense “relating to controlled substances” and so does not make the noncitizen deportable or inadmissible for having a drug conviction. The BIA held that federal accessory after the fact is an aggravated felony as obstruction of justice, if a sentence of a year or more is imposed. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997). Counsel should avoid a sentence of a year or more for any one count. If that is not possible, counsel should plead specifically to conduct that impeded the initial apprehension of the principal, before criminal proceedings were brought in court (or at least, leave the record open to that possibility). This will give immigration counsel a strong argument that the offense is not an aggravated felony. See discussion at § N.14 Safer Pleas, Part G, infra. Criminal defense counsel should assume conservatively that accessory after the fact will be held a crime involving moral turpitude. However, there is a good chance that the Ninth Circuit will stick to its position that this is not the case, and immigration counsel should not concede the point. 115 See discussion in Note: Crimes Involving Moral Turpitude and further discussion of accessory at Note: Safer Pleas. C. Simple Possession or Less, as an Aggravated Felony and Under Lujan-Armendariz Current rules. The following is the standard regarding when a conviction for simple possession of a controlled substance is an aggravated felony in immigration and federal criminal proceedings in the Ninth Circuit. These rules are summarized in the drug plea Chart following this Note, at Part F. 1. A conviction for even a minor offense relating to controlled substances—such as simple possession, under the influence, or possession of paraphernalia—will make a noncitizen 114 Matter of Martinez-Espinoza, supra. 115 Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007)(en banc) held that accessory after the fact categorically cannot be a crime involving moral turpitude. The BIA held that the similar misprision of felony is a CIMT. Matter of Robles, 24 I&N Dec. 22 (BIA 2006) (misprision of felony under 8 USC §4) (Ninth Circuit appeal pending). Recently, however, the Ninth Circuit en banc held that it will defer to the BIA’s holding that an offense involves moral turpitude, if the holding is reasonable. Marmolejo-Campos v. Holder, 558 F.3d 903 (9 th Cir. 2009) (en banc) (petition for certiorari pending at the Supreme Court). Immigrant Legal Resource Center N-73
California Quick Reference Chart and Notes February 2010 deportable and inadmissible, even if it is not an aggravated felony. See 8 USC §§ 1182(a)(2)(A), 1227(a)(2)(B)(ii). 2. Conviction of “a single offense involving possession for one’s own use of thirty grams or less of marijuana” has several advantages. The person is not deportable; it is possible that the conviction will qualify for a waiver of inadmissibility under 8 USC § 1182(h); and the conviction is not a bar to naturalization or other relief that requires good moral character. 116 This extends to possession or being under the influence of marijuana or hashish, 117 and to attempting to be under the influence of THC. 118 Counsel should put in the record that the amount of marijuana was less than 30 grams, 119 although the law is unsettled. 3. A first simple possession conviction, whether felony or misdemeanor, is not an aggravated felony in immigration or federal criminal proceedings, under the U.S. Supreme Court decision in Lopez v. Gonzales,127 S. Ct. 625 (2006). The only exception is if the substance possessed was more than five grams of cocaine base (crack) or any amount of flunitrazepam (a date-rape drug), in which case the conviction is an aggravated felony. 120 4. If there are no prior controlled substance convictions, a first conviction for simple possession that is eliminated under rehabilitative provisions such as DEJ, Prop 36, or PC § 1203.4, also is eliminated for immigration purposes. Lujan-Armendariz v. INS, 222 F.3d 728 (9 th Cir. 2000). This includes a conviction for cocaine base or flunitrazepam. 116 INA § 237(a)(2)(B)(i), 8 USC § 1227(a)(2)(B)(i) [deportation ground and exception]; INA § 212(h), 8 USC § 1182(h) [waiver of inadmissibility]. The § 212(h) waiver is available to the spouse, parent, son or daughter of a United States citizen or permanent resident, a VAWA applicant, or to anyone if the conviction occurred at least fifteen years before the waiver application. See also INA § 101(f)(3), 8 USC §1101(f)(3) (it is not contained in the bar to establishing good moral character, a requirement for naturalization and certain forms of relief). 117 See Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993) (extends to under the influence). It extends to hashish, although for the § 1182(h) waiver purposes it may only be as much hashish as is equivalent to 30 grams or less marijuana. “So long as the facts of a case satisfy the other requirements of section 212(h), you may properly interpret section 212(h) as giving you the authority to grant a waiver to an alien whose conviction was for the simple possession of 30 grams or less of any cannabis product that is within the definition found in 21 USC § 802(16). Absent some unusual circumstances, however, we recommend that you limit your discretion in section 212(h) cases so that a section 212(h) waiver will be denied in most cases in which the alien possessed an amount of marijuana, other than leaves, that is the equivalent of more than 30 grams of marijuana leaves under the Federal Sentencing Guidelines, 18 USC App. 4.” See INS General Counsel Legal Opinion 96-3 (April 23, 1996), withdrawing previous INS General Counsel Legal Opinion 92-47 (August 9, 1992). See also 21 USC § 802(16), defining marijuana to include all parts of the Cannabis plant, including hashish. 118 Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005)(conviction for having attempted to be under the influence of (THC)-carboxylic acid in violation of Nev. Rev. Stat. §§ 193.330, 453.411 is not a deportable offense, where the government failed to establish that the conviction was for “other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.”) 119 Ibid. 120 In Lopez the court held that a possession offense would be considered a felony, and therefore an aggravated felony, only if it would be so held if charged in federal court (the “federal felony” rule). First offense simple possession is a misdemeanor under federal law, unless the substance was flunitrazepam or more than 5 grams of crack. N-74 Immigrant Legal Resource Center
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