DOMINGUEZ-RODRIGUEZ

Cite as 

 (BIA 2014)                               Interim Decision #3814




    Matter of Jonet DOMINGUEZ-RODRIGUEZ, Respondent
                           Decided September 18, 2014
                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals


  For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act,

(a)(2)(B)(i) (2012), the phrase “a single offense involving possession for
one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific
inquiry into the character of the alien’s unlawful conduct on a single occasion, not a
categorical inquiry into the elements of a single statutory crime. Moncrieffe v. Holder,

 (2013), distinguished. Matter of Davey, 

 (BIA 2012),
reaffirmed.
FOR RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY:                           Donald W. Cassidy,
Associate Legal Advisor
AMICUS CURIAE: American Immigration Lawyers Association; 1 Federation for
American Immigration Reform2

BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board
Members.
PAULEY, Board Member:


   In a decision dated September 27, 2013, an Immigration Judge
terminated the removal proceedings against the respondent.             The
Department of Homeland Security (“DHS”) has appealed from that
decision. The appeal will be sustained, the proceedings will be reinstated,
and the record will be remanded to the Immigration Judge.

             I. FACTUAL AND PROCEDURAL HISTORY
    The respondent is a native and citizen of Cuba and a lawful permanent
resident of the United States. On July 2, 2013, he was convicted of
possessing more than 1 ounce of marijuana in violation of section 453.336

1
  Mark R. Barr, Russell Abrutyn, Vikram Badrinath, Joseph C. Hohenstein, and
Rebecca Sharpless, Esquires
2
  Michael M. Hethmon, Esquire


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of the Nevada Revised Statutes, which is a “category E felony.” He was
sentenced to an indeterminate term of imprisonment of between 19 and
48 months, which was suspended, and he was placed on probation. Based
on that conviction, the DHS filed a notice to appear in Immigration Court
charging the respondent with deportability under section 237(a)(2)(B)(i) of
the Immigration and Nationality Act, 

(a)(2)(B)(i) (2012),
which provides in pertinent part that “[a]ny alien who at any time after
admission has been convicted of a violation of . . . any law or regulation of
a State . . . relating to a controlled substance . . . , other than a single
offense involving possession for one’s own use of thirty grams or less of
marijuana, is deportable.”
    Relying on Moncrieffe v. Holder, 

 (2013), 3 the
Immigration Judge concluded that the respondent is not removable based
on his determination that the minimum conduct punishable under section
453.336 of the Nevada Revised Statutes involved possession of 30 grams or
less of marijuana for personal use.4 Further, although the DHS sought to
submit evidence to prove that the conduct underlying the respondent’s
conviction actually involved possession of more than 30 grams of
marijuana, the Immigration Judge concluded that Moncrieffe forbade
such a “circumstance-specific” inquiry and required termination of the
proceedings unless the DHS could establish that the respondent was
convicted of possessing more than 30 grams of marijuana by reference to
documents included in the “record of conviction” under the “modified
categorical approach,” such as the judgment, charging document, or plea
agreement. See Shepard v. United States, 

 (2005).
    The DHS argues that the Immigration Judge’s decision is contrary to
Matter of Davey, 

 (BIA 2012), where we interpreted section
237(a)(2)(B)(i) of the Act and held that the statutory phrase “a single
offense involving possession for one’s own use of thirty grams or less of
marijuana” calls for a circumstance-specific inquiry into the character of
3
    The Moncrieffe Court held that possession with intent to distribute marijuana under
Georgia law was not an aggravated felony because the “minimum conduct” covered by
the pertinent Georgia statute involved distribution of a “small amount” of marijuana for
“no remuneration,” conduct that is punishable as a Federal misdemeanor under 

(b)(4) (2012). See Moncrieffe v. Holder, 133 S. Ct. at 1685–86, 1693−94. In
arriving at that conclusion, the Court observed that “[t]he aggravated felony at issue here,
‘illicit trafficking in a controlled substance,’ is a ‘generic crim[e].’ So the categorical
approach applies.” Id. at 1685 (second alteration in original) (citation omitted).
4
    As the Immigration Judge correctly observed, 1 ounce is equivalent to approximately
28.5 grams, and thus it is theoretically possible for an individual to be convicted of
violating section 453.336 of the Nevada Revised Statutes by possessing “thirty grams or
less” of marijuana.


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the alien’s unlawful conduct on a single occasion, not a categorical inquiry
into the elements of a single statutory crime. 

 at 39−41 (citing Nijhawan
v. Holder, 

 (2009)).
    Although the DHS’s position finds explicit support in Matter of
Davey, which the Immigration Judge did not discuss in his decision, the
Immigration Judge concluded that his contrary position was mandated by
Moncrieffe, which would supersede contrary Board precedent. Given the
respondent’s pro se status and the complexity of the important legal issue at
stake, we solicited amicus curiae briefing in which we asked amici for their
views as to what impact, if any, Moncrieffe has on the continuing validity
of Matter of Davey.5

                                  II. ANALYSIS
    In Matter of Davey, we concluded that an Immigration Judge’s inquiry
regarding the applicability of the exception in section 237(a)(2)(B)(i) for
“possession for personal use” was not subject to the evidentiary constraints
of the categorical and modified categorical approaches. As we explained:

       The language of the section 237(a)(2)(B)(i) exception is exceedingly narrow and
     fact-specific. It refers not to a common generic crime but rather to a specific type
     of conduct (possession for one’s own use) 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 calls for what the Supreme Court has referred to as
     a “circumstance-specific” inquiry, that is, an inquiry into the nature of the alien’s
     conduct. Nijhawan v. Holder, 

. It does not suggest a focus on the
     formal elements of generic offenses.

; see also Matter of Martinez Espinoza, 

(BIA 2009) (holding that section 212(h) of the Act, 

(h)
(2012), which contains language similar to the “possession for personal
use” exception in section 237(a)(2)(B)(i), invites a circumstance-specific
inquiry, rather than a categorical one); accord Popescu-Mateffy v. Holder,

, 615−17 (8th Cir. 2012) (extending deference to Martinez
Espinoza under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 

 (1984)). We conclude that Moncrieffe does not
cast doubt on the validity of this holding.
    The applicability of the categorical approach depends on the language
of the particular immigration provision at issue. Where the immigration
5
   We acknowledge with appreciation the thoughtful arguments raised in the briefs
submitted by amici curiae.


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statute provides for the removal of an individual convicted of a “generic
crime,” it is undisputed that the DHS must establish that the elements
of the individual’s offense categorically correspond to the elements of
the pertinent generic crime. The immigration provision at issue in
Moncrieffe—section 101(a)(43)(B) of the Act, 

(a)(43)(B)
(2012)—was found to define such a “generic crime” because it
incorporated by reference a criminal sentencing statute, 

(c)
(2012), to which the categorical approach necessarily applies. Moncrieffe
v. Holder, 

.
    The Supreme Court and the lower Federal courts have recognized,
however, that the categorical approach is inapplicable in removal
proceedings when the immigration provision under review “call[s] for
a ‘circumstance-specific approach’ that allows for an examination, in
immigration court, of the ‘particular circumstances in which an offender
committed the crime on a particular occasion.’” Moncrieffe v. Holder, 

 (citation omitted); see also Nijhawan v. Holder, 557 U.S. at
38−40 (holding that the categorical approach does not apply to the
determination whether a fraud offense caused a loss to victims of more than
$10,000, which is required to support an aggravated felony charge under
section 101(a)(43)(M)(i) of the Act); Rojas v. Att’y Gen. of U.S., 

, 215−16 (3d Cir. 2013) (en banc) (holding that the categorical approach
does not apply to the determination whether an offense is one “relating to
a controlled substance” under section 237(a)(2)(B)(i) of the Act); Mellouli
v. Holder, 

 (8th Cir. 2013) (distinguishing Moncrieffe
and agreeing with Matter of Davey that the “possession for personal use”
exception in section 237(a)(2)(B)(i) contemplates a circumstance-specific
inquiry), cert. granted on other grounds, 

 (2014);
Varughese v. Holder, 

, 274−75 (2d Cir. 2010) (per curiam)
(holding that the categorical approach does not apply to the determination
whether the “amount of the funds” involved in a money-laundering offense
exceeded $10,000, so as to support an aggravated felony charge under
section 101(a)(43)(D) of the Act), cert. denied, 

 (2011);
Bianco v. Holder, 

, 270−73 (5th Cir. 2010) (holding that the
categorical approach does not apply to the determination whether the victim
of a crime of violence had a qualifying “domestic” relationship to the
offender, so as to support a “crime of domestic violence” removal charge
under section 237(a)(2)(E)(i) of the Act). For the reasons articulated in
Matter of Davey, we remain convinced that the language of the “possession
for personal use” exception most naturally invites a circumstance-specific
inquiry, not a categorical one.
    The American Immigration Lawyers Association (“AILA”) argues that
Moncrieffe has undermined our decision in Matter of Davey by establishing

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a “presumption” that the categorical approach applies to the criminal
grounds for removal.6 Further, AILA contends that this presumption can be
rebutted—so as to authorize a circumstance-specific inquiry of the sort
permitted by Nijhawan—only if application of the categorical approach
would render the language of the pertinent removal ground “meaningless.”
    We do not read Moncrieffe as having established such a presumption.
In immigration cases, the applicability of the categorical approach
necessarily depends on the legislative intent underlying the particular
provision under review. See Nijhawan v. Holder, 

 (“We
conclude that Congress did not intend [section 101(a)(43)(M)(i)’s]
monetary threshold to be applied categorically . . . .”). To discern the intent
of Congress, we look to the most natural meaning of the words it has
chosen, viewed in context. Indeed, the Moncrieffe Court itself recognized
that when specific limiting language is located in the text of “the
[Immigration and Nationality Act] proper” (rather than in the text of a
criminal statute that is incorporated into the Act by reference), this
“suggests an intent to have the relevant facts found in immigration
proceedings.” Moncrieffe v. Holder, 

. The language of
the “possession for personal use” exception is located in the text of the Act
“proper” and, by directing the adjudicator’s attention to a set of very
specific facts about an alien’s crime, most naturally suggests that a
circumstance-specific inquiry is contemplated.7
    AILA also maintains that Matter of Davey runs afoul of Moncrieffe by
permitting “minitrials” in removal proceedings with respect to issues that
may not have been conclusively resolved during the underlying criminal
proceedings. It also expresses concern that a noncategorical inquiry with
respect to the “possession for personal use” exception might swallow up
the categorical inquiry required for the threshold determination as to
whether the offense is one “relating to a controlled substance.”8 But the

6
   The Federation for American Immigration Reform filed a brief arguing that
Moncrieffe does not undermine the validity of our conclusion in Matter of Davey.
7
   If application of the categorical approach would render an immigration provision
“meaningless,” that would certainly be a strong indication that Congress contemplated
a noncategorical inquiry. But we discern nothing in Moncrieffe to suggest that
such a “meaninglessness” finding is a condition precedent to the application of the
circumstance-specific approach discussed in Nijhawan and its progeny.
8
   Contrary to AILA’s view, the United States Court of Appeals for the Third Circuit has
held that the categorical approach does not apply to the determination whether an offense
is one “relating to a controlled substance.” Rojas v. Att’y Gen. of U.S., 728 F.3d at
215−16. That specific issue is not disputed on appeal and we do not address it. However,
nothing in our decision precludes the Immigration Judge and the parties from exploring it
further on remand.


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circumstance-specific inquiry contemplated by the “possession for personal
use” exception does not invite Immigration Judges to redetermine an alien’s
criminal guilt or innocence. See Matter of Martinez Espinoza, 

 (explaining that “removal proceedings are not a venue for the
relitigation of criminal prosecutions”). If the fact of conviction is sufficient
by itself to conclusively establish all facts relevant to prove the
applicability of the “possession for personal use” exception, the
Immigration Judge’s inquiry is at an end, and the removal charge must be
dismissed without resort to a circumstance-specific inquiry. See id.; cf.
Matter of Ahortalejo-Guzman, 

 (BIA 2011) (holding that
where the record of conviction conclusively showed that the respondent
was not convicted of a family violence assault, examination of evidence
outside the record was not permitted to show a familial relationship).
However, in those instances where the applicability of the exception is not
determinable by reference to the elements of the offense, it is true that
Immigration Judges must ordinarily inquire into some of the factual
circumstances surrounding the crimes, just as they do in the context of
calculating the amount of loss to the victim under section 101(a)(43)(M)(i)
of the Act in the wake of Nijhawan. Inquiries of that kind are by no means
unusual in removal proceedings.9
    Moreover, as with the $10,000 victim loss issue addressed in Nijhawan,
the immigration statute requires the DHS to come forward with “clear and
convincing evidence” that the respondent possessed more than 30 grams
of marijuana (or that he possessed marijuana for some reason other than
personal use). See Matter of Davey, 

; 

(a) (2014). It also contemplates the use of fundamentally fair
procedures that give respondents a reasonable opportunity to dispute any
DHS claim that the exception is inapplicable. See Nijhawan v. Holder,
557 U.S. at 41−42. Thus, “uncertainties caused by the passage of time are
likely to count in the alien’s favor.” Id. at 42.
9
   With respect to removability determinations, Immigration Judges routinely engage in
such fact-finding when deciding whether an alien’s conduct gives the Attorney General
“reason to believe” that the alien has been an illicit trafficker in a controlled substance,
a human trafficker, or a money launderer. See sections 212(a)(2)(C), (H), (I) of the Act.
Further, Immigration Judges are often called upon to examine the facts underlying
a conviction to determine whether the alien is ineligible for asylum and withholding of
removal as one convicted of a “particularly serious crime” or is subject to heightened
discretionary requirements under section 212(h) of the Act by virtue of having committed
a “violent or dangerous crime.” See 

(d) (2014). In fact, this type of
fact-finding, in the context of removability, is often more straightforward and less
burdensome to conduct than complex legal determinations regarding whether a crime is
divisible or subject to the categorical or modified categorical approaches.


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                             III. CONCLUSION
   We conclude that the Immigration Judge erred in terminating the
proceedings against the respondent. Accordingly, the DHS’s appeal will be
sustained, the removal proceedings will be reinstated, and the record will be
remanded to the Immigration Judge. On remand, the DHS has the burden
of proving by clear and convincing evidence that the respondent’s offense
does not fall within the “possession for personal use” exception in section
237(a)(2)(B)(i) of the Act. In seeking to carry that burden, the DHS may
proffer any evidence that is reliable and probative, but the respondent
should be given a reasonable opportunity to challenge or rebut that
evidence.
   ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
removal proceedings are reinstated.
   FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
entry of a new decision.




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