Possess more than 28.5 grams cannabis or 8 grams concentrated cannabis
Age 18 and older
Aggravated Felony (AF)
Not an AF unless a prior possession is plead or proved.
See Advice at 11357(a), above, for argument that Cal cannabis is not a CS for immigration purposes
Crime Involving Moral Turpitude (CIMT)
Not a CIMT
Other Removal Grounds
Yes, deportable and inadmissible (with no 212(h) waiver) CS offense—unless D can qualify for the 30 grams mj category. See description of the category and its advantages at (a)(2), above.
The BIA held that the 30 grams amount is a factual issue.1 The BIA held that the amount of marijuana is not established under the regular categorical approach, which focuses on the minimum conduct required for guilt, but under the fact-based “circumstance specific” analysis where any “reliable and probative” evidence may be considered. Matter of Davy, 26 I&N Dec. 37 (BIA 2012); see also Matter of Hernandez-Rodriguez, 26 I&N Dec. 408 (BIA 2014). For a discussion of both how to contest and how to best use this ruling, see Zota, Matter of Davy and the Categorical Approach (NIPNLG January 15, 2013) at https://nationalimmigrationproject.org/PDFs/practitioners/practice_advisories/crim/2013_15Jan_davey-categor-apprch.pdf.
Under the circumstance specific approach, arguably a statement in the plea agreement that the amount was, e.g., 29 grams overcomes other factual evidence. See, e.g., Chang v. INS, 307 F.3d 1185 (9th Cir. 2002) (plea to loss to victim under $10,000 is controlling) and see Nijhawan v. Holder, 557 U.S. 29, 34-36 (2009), finding that under the circumstance specific approach the facts must be “tethered” to the count of conviction. See discussion in Matter of Davy and the Categorical Approach, above, and see Nijhawan practice advisories at www.ilrc.org/crimes and www.nipnlg.org.
The BIA held that ICE must prove deportability by establishing that the amount in the case was over 30 grams, while the immigrant must prove eligibility for a § 212(h) waiver by showing the amount was 30 grams or less. Matter of Hernandez-Rodriguez, supra. Plead specifically to 29 or 30 gm or less. See Advice regarding concentrated cannabis.
Burden of proof. ICE must prove conviction was for more than 30 grams cannabis, to prove an LPR is deportable. ICE can use evidence from outside the ROC to show the amount.
To apply for the 212(h) waiver of inadmissibility, under current law D has burden to produce the same kind of evidence to show 30 grams or less.
Advice and Comments
Please read Advice for 11357(a), including argument that California cannabis is not a CS for immigration purposes.
Concentrated cannabis.2The removal grounds use the term “marijuana,” which is defined at 21 USC § 802(16) to include all parts of the cannabis plant, including concentrated cannabis (hashish). Since the passage of Proposition 64 in November 2016, California statutes use the term “cannabis.” See H&S C § 11018 and B&P C § 26001.
The advantages relating to possessing 30 grams or less of marijuana apply, at the least, to the equivalent amount of hashish (not hash oil), which is 6 grams or less. See USSG equivalency chart on page 167 of https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/CHAPTER_2_D.pdf. Immigration authorities (as the former INS) acknowledged that a conviction of 30 grams of concentrated cannabis comes within the automatic exception to the deportation ground and is amenable to a waiver of inadmissibility under INA § 212(h) [8 USC § 1182(h)]. But INS recommended that absent unusual circumstances, the § 212(h) waiver should be denied as a matter of discretion if the amount of concentrated cannabis is equivalent to more than 30 grams of marijuana, i.e., is more than a few grams of hashish. See INS General Counsel Legal Opinion 96-3 (April 23, 1996), withdrawing previous INS General Counsel Legal Opinion 92-47 (August 9, 1992). The immigrant must prove the amount, so counsel should be sure to put the amount on the record, for example written on the plea form and/or stated in the plea colloquy—or else plead to 30 grams or less of marijuana (“cannabis”). Immigration authorities are likely to deny a 212(h) waiver of inadmissibility as a matter of discretion unless the concentrated cannabis amount is equivalent to 30 grams marijuana or less, meaning six grams or less of hashish (but not hash oil). Try to plead to this amount, or else just plead to marijuana (“cannabis” in California statute).
Imm advocates can argue that this limit does not apply to the exception to the deportation ground. Under the language of the statute, 30 gm of “marijuana,” which includes concentrated cannabis, is not a deportable offense. But best practice is to plead to six grams or less hashish, or else to marijuana, if possible.
Specific plea to 30 grams or less. The BIA held the 30 grams or less issue is “circumstance specific” and can be proved by facts outside the record of conviction. There is strong authority that a plea bargain that specifically names the amount as 30 grams or less defines the conviction and trumps other evidence,3See, e.g., Chang v. INS, 307 F.3d 1185 (9th Cir. 2002) (plea to loss to victim under $10,000 is controlling where $10k is subject to the circumstance specific test) and see Nijhawan v. Holder, 557 U.S. 29, 34-36 (2009), finding that under the circumstance specific approach the facts must be “tethered” to the count of conviction. See discussion in Advisory, Matter of Davy and the Categorical Approach at www.nipnlg.org and see Nijhawan practice advisories at www.ilrc.org/crimes and www.nipnlg.org. although ICE might try to contest this.