DOR

Cite as 

 (BIA 2025)                                 Interim Decision #4088




                   Matter of Jonalson DOR, Respondent
                              Decided March 18, 2025
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                         Board of Immigration Appeals

  The time of conviction is the relevant point for determining whether a respondent’s State
conviction is for a controlled substance offense under section 237(a)(2)(B)(i) of the
Immigration and Nationality Act, 

(a)(2)(B)(i) (2018), not the time the
respondent’s removability is adjudicated in immigration proceedings.
FOR THE RESPONDENT: Claire E. Maguire, Esquire, Lynn, Massachusetts
BEFORE: Board Panel: MALPHRUS, Acting Chief Appellate Immigration Judge;
PETTY and CLARK, Appellate Immigration Judges.
MALPHRUS, Acting Chief Appellate Immigration Judge:


    In a decision dated July 11, 2024, the Immigration Judge denied the
respondent’s motion to terminate his removal proceedings, concluding that
the respondent had been convicted of a controlled substance offense and was
therefore removable from the United States. The respondent appeals from
that decision, arguing that when comparing State and Federal controlled
substance schedules, the relevant Federal schedule is that which is in place
at the time the respondent’s charge of removability is finally adjudicated.
The appeal will be dismissed.

                                I. BACKGROUND
    The respondent is a native and citizen of Haiti and a lawful permanent
resident of the United States. In August 2018, the respondent was convicted
of possessing “marihuana” 1 with intent to manufacture, distribute, dispense,
or cultivate in violation of section 32C(a) of chapter 94C of the
Massachusetts General Laws. The Department of Homeland Security
(“DHS”) charged the respondent with removability under section
237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”), 

(a)(2)(B)(i) (2018), 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 (as defined

1
   This order uses the term “marihuana” rather than “marijuana” to accord with the spelling
used under Massachusetts and Federal law.
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in section 802 of Title 21) . . . is deportable.” The respondent filed a motion
to terminate his removal proceedings, arguing that the Massachusetts
definition of marihuana was overbroad as compared to the Federal definition.
The Immigration Judge denied the motion to terminate, and the respondent
appealed. We review de novo whether the respondent’s conviction is for a
controlled substance offense. 

(d)(3)(ii) (2025). 2

                                II. DISCUSSION
    To determine whether the respondent’s conviction renders him
removable, we employ the categorical approach, under which we ask
whether the elements of the respondent’s conviction match those of section
237(a)(2)(B)(i) of the INA, 

(a)(2)(B)(i). See Matter of
Laguerre, 

, 438–39 (BIA 2022). To establish such a match,
DHS “must connect an element of the [respondent’s] conviction to a drug
‘defined in [

].’” Mellouli v. Lynch, 

 (2015).
As it is undisputed that the respondent’s conviction involved marihuana, this
inquiry necessarily requires that the Massachusetts definition of marihuana
match, or be narrower than, the corresponding definition of marihuana in the
Federal Controlled Substances Act. Specifically, the parties disagree about
the point in time used for this comparison.
   In denying the respondent’s motion to terminate, the Immigration Judge
reasoned that the proper comparison is between the Massachusetts and
Federal definitions of marihuana as they existed on the date of the
respondent’s conviction in August 2018. Comparing the definitions of
marihuana at the time of conviction, the Immigration Judge concluded that
the respondent is removable because at that time Massachusetts defined
marihuana more narrowly than Federal law. 3 According to the respondent,
however, the proper comparison should be between the August 2018
Massachusetts definition of marihuana and the current Federal definition, as
2
   We first issued a decision in the respondent’s case on June 30, 2020. The respondent
sought review of that decision, and in Dor v. Garland, 

 (1st Cir. 2022), the
United States Court of Appeals for the First Circuit remanded the case for further
proceedings. On August 25, 2023, we remanded proceedings to the Immigration Judge.
The criminal convictions that were the subject of these prior decisions have since been
vacated, and the respondent has withdrawn his applications for relief from removal and
sought termination of proceedings. The Immigration Judge’s July 11, 2024, order denying
the motion to terminate is the only decision presently before us.
3
   In August 2018, Massachusetts law and Federal law defined marihuana identically,
except that Massachusetts excluded “industrial hemp.” Compare Mass. Gen. Laws
ch. 94C, § 1 (2018), with 

(16) (2018).

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that is the definition in effect when the removal charge is finally adjudicated.
Under this approach, he would not be removable because Massachusetts now
defines marihuana more broadly than Federal law. 4
    The INA provides that an alien “is deportable” if he “has been convicted
of a violation of . . . any law or regulation of a State . . . relating to a [federally]
controlled substance.” INA § 237(a)(2)(B)(i), 

(a)(2)(B)(i).
By itself, the statutory text does not resolve the present timing issue. 5
However, four of the United States Courts of Appeals have squarely
addressed the issue, and all four have rejected the respondent’s
time-of-removal argument in favor of using the time of conviction.
Medina-Rodriguez v. Barr, 

 (9th Cir. 2020); Gordon v.
U.S. Att’y Gen., 

, 1351 n.4 (11th Cir. 2020); Martinez v.
Att’y Gen., 

 (3d Cir. 2018); Doe v. Sessions, 

,
208–09 (2d Cir. 2018). 6 Those precedents are controlling in removal
proceedings arising in those circuits. See Matter of Anselmo, 

 (BIA 1989) (holding that precedential opinions of the Federal
courts of appeals are binding on the Board and Immigration Judges in
proceedings arising with those courts’ jurisdictions). The United States
Court of Appeals for the First Circuit, in whose jurisdiction this case arises,
has not squarely addressed the issue. We agree with the circuits that have
addressed the issue that the time of conviction is the relevant point for
determining whether a respondent’s State conviction is for a controlled
substance offense under section 237(a)(2)(B)(i) of the INA, 

(a)(2)(B)(i), not the time the respondent’s removability is adjudicated

4
  Since December 2018, Federal law has defined marihuana to exclude all “hemp,”
whereas Massachusetts continues to exclude only “industrial hemp.” Compare Mass. Gen.
Laws ch. 94C, § 1 (2024), with 21 U.S.C.A § 802(16) (West 2024).
5
   We have previously assumed the time of conviction is the relevant point of comparison,
though not in a case where the issue was disputed. See Matter of Ferreira, 

 (BIA 2014). Several courts of appeals have apparently done likewise. See
Aguirre-Zuniga v. Garland, 

 (7th Cir. 2022) (“The sole question . . . is
whether, at the time of Aguirre-Zuniga’s conviction, the definition of ‘methamphetamine’
was broader under Indiana Statute than federal law.”); Vazquez v. Sessions, 

,
870–71 (5th Cir. 2018) (comparing the Oklahoma and Federal controlled substance
schedules as they existed at the time of the petitioner’s 2013 Oklahoma conviction).
6
   The Sixth Circuit has cited these precedents favorably in the sentencing context.
United States v. Clark, 

 (6th Cir. 2022) (citing Doe, Gordon, and Martinez
and explaining “that the justifications for a time-of-conviction rule are most compelling in
the immigration context given the immediate removal consequences that flow from
criminal convictions”).

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in immigration proceedings. In addition to being the best reading of the law,
as discussed below, using the time of conviction will promote consistency
and predictability in the application of the immigration laws nationwide,
which is a very important goal. See Matter of C-T-L-, 

(2010).
    The respondent claims that because Congress has removed hemp from
the Federal marihuana definition, it does not believe possession of hemp for
distribution is worthy of deportation. Thus, he argues that applying the
time-of-conviction rule to him “defies” and “exceed[s]” Congress’ will and
effectively punishes him for past transgressions without due process. We
find these arguments unpersuasive.
    Congress’ decision to add or remove a substance from the Federal list of
controlled substances reflects its judgment regarding whether certain conduct
involving that substance should be criminal. These criminal laws of general
applicability are not primarily about immigration, and thus whether offenses
involving that substance result in removal is secondary. Here, the respondent
was convicted in 2018 of conduct that was illegal in Massachusetts and under
Federal law more generally at the time the conduct occurred, regardless of
later variances in how Massachusetts and the Federal Government elected to
treat hemp. “Looking to the criminal law at the time of conviction has the
undoubted benefit of attaching immigration consequences to the alien’s
actual conduct and culpability at the time it occurs.” Vasquez v. Garland,

 (2d Cir. 2023). Additionally, in Brown v. United States,

, 114–15, 123 (2024), the Supreme Court of the United States
discussed an analogous point in the criminal sentencing context and held,
consistent with the approach we adopt here, “that a state drug conviction
counts as an [Armed Career Criminal Act] predicate if it involved a drug on
the federal schedules at the time of that offense.”
    We have traditionally looked to the time of conviction when determining
the immigration consequences of convictions, rather than focusing on the
current state of the criminal law when a case comes before us in the course
of (often protracted) immigration proceedings.             See Matter of
Velasquez-Rios, 

 (BIA 2018), aff’d, 

(9th Cir. 2021). The reasoning for the approach we adopt here applies not
only in the controlled substance context but also as to criminal convictions
more generally.
   The respondent also claims that in Mellouli v. Lynch, 

, and
Moncrieffe v. Holder, 

 (2013), the Supreme Court assumed that
the relevant point of comparison was the time of removal. But the timing
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issue now before us was not presented to the Court in Mellouli or Moncrieffe,
and thus the Court in those cases had no need to decide whether the relevant
point is the time of conviction or time of removal. See United States v.
Abdulaziz, 

 (1st Cir. 2021) (recognizing that “neither party
in Mellouli contended that the federal drug schedules had expanded or
contracted in any material way between the time of Mellouli’s 2010 Kansas
conviction and his removal proceedings in 2012”). “Questions which merely
lurk in the record, neither brought to the attention of the court nor ruled upon,
are not to be considered as having been so decided as to constitute
precedents.” Cooper Indus., Inc. v. Aviall Servs., Inc., 

(2004) (quoting Webster v. Fall, 

 (1925)). Indeed, the
necessity of choosing between the two interpretations only arises when (as
here) the State and Federal drug schedules match at the time of the
respondent’s conviction but later diverge before the respondent’s removal
proceedings become final.
    Under the respondent’s time-of-removal argument, the immigration
consequences of State drug convictions would remain unpredictable and
unfixed in time, creating serious notice and retroactivity problems whenever
the Federal controlled substance schedules are augmented (rather than
narrowed) after a respondent’s conviction but before the end of removal
proceedings. Cf. Vasquez, 

 & n.5 (rejecting the retroactive
application of State sentencing law to Federal immigration proceedings for
similar reasons). Considering that aliens in criminal proceedings must be
notified of the immigration consequences of pleas, Padilla v. Kentucky,

 (2010), we share the Second Circuit’s view that “[t]he
‘starting place’ of the categorical approach should enable ‘fair notice and
effective assistance of counsel’ by focusing on the [Controlled Substances
Act] Schedules in effect at the time of conviction.” Doe, 

(citations omitted). “Such a ‘time-of-conviction’ rule provides both the
Government and the alien with maximum clarity at the point at which it is
most critical for an alien to assess (with aid from his defense attorney)
whether ‘pending criminal charges may carry a risk of adverse immigration
consequences.’” 

 (quoting Padilla, 

).
    The respondent acknowledges this potential risk but proposes that we
alleviate it by applying his time-of-removal argument as a “one-way ratchet,”
that is, by invoking it except when doing so would cause detriment to the
respondent or defy his reliance-based expectations. But that solution
misconstrues the problem, which is one of statutory interpretation, not policy.
The respondent essentially asks us to interpret the statute in a manner that
would systematically violate the presumption against retroactivity, see
Vartelas v. Holder, 

 (2012), despite the availability of an
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alternative interpretation that poses far fewer retroactivity problems.
Moreover, our interpretation ensures a much greater degree of certainty and
predictability in removal proceedings. Adopting a construction of the INA
that could only be applied to some respondents some of the time would be to
espouse “the dangerous principle that judges can give the same statutory text
different meanings in different cases.” Clark v. Martinez, 

(2005). We therefore interpret section 237(a)(2)(B)(i) of the INA,

(a)(2)(B)(i), as providing for the removability of any alien
who, after admission, was convicted of violating any State law relating to a
substance that was federally controlled at the time of the State conviction.

                             III. CONCLUSION
   For the foregoing reasons, we conclude that the Immigration Judge
properly found the respondent removable under section 237(a)(2)(B)(i) of
the INA, 

(a)(2)(B)(i). No other issues are presented on
appeal. We will therefore dismiss the respondent’s appeal.

   ORDER: The appeal is dismissed.




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