MONCADA

Cite as 

 (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, 

(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, 

(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, 

(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, 

 (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. 

. 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, 

(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,

 (2004) (citing Hughes Aircraft Co. v. Jacobson, 

 (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, 

, 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., 

 (2000) (quoting Davis v. Michigan Dept. of Treasury, 

 (1989)); see also Robinson v. Shell Oil Co., 

 (1997);
Brown v. Gardner, 

 (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 

 at 133 (quoting
Gustafson v. Alloyd Co., 

 (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 

 (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 

. 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, 

(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, 

 Stat. 1611, 1611-12, 1616, which amended
section 212(h) and added former 241(f)(2) of the Act, 

(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,

 (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, 

(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,

(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, 

(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,

 (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, 

(a), 

, 5080. As a
consequence, the Government must prove that the alien’s conviction does not fall within the
exception. Medina v. Ashcroft, 

, 1065 n.5 (9th Cir. 2005) (citing Sandoval
v. INS, 

 (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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