5 Cir: 212(h) waiver for single marijuana offense available once only

The Fifth Circuit Court of Appeals held that an individual who previously received a waiver of inadmissibility pursuant to INA § 212(h) waiving inadmissibility for a single offense for possession of 30 grams or less of marijuana cannot receive a second such waiver for a separate offense. Rana v. Holder, No. 10-60539, slip op. (5th Cir. Aug. 30, 2011) (Smith, Benavides, and Haynes, J.). Judge Smith wrote the panel’s decision.

This case involved an LPR who was convicted in 2003 of possessing less than two ounces of marijuana. Rana, No. 10-60539, slip op. at 2. He was granted a § 212(h) waiver at the time in conjunction with an application for adjustment of status. Rana, No. 10-60539, slip op. at 2. In 2005 he was again convicted of possession of less than two ounces of marijuana. Rana, No. 10-60539, slip op. at 2.

He subsequently traveled abroad and on return was deemed inadmissible, pursuant to INA § 212(a)(2)(A)(i)(II), due to the 2005 controlled substances conviction. Rana, No. 10-60539, slip op. at 2-3. He sought another § 212(h) waiver, but the IJ determined that he was ineligible because he now had two possession convictions. Rana, No. 10-60539, slip op. at 3-4. The BIA affirmed. The Fifth Circuit agreed with the IJ and BIA’s conclusions.

Rana argued that “because the Attorney General issued a waiver relating to his 2003 marihuana possession conviction, any new waiver would only ‘relate[] to a single offense of simple possession,’ namely his 2005 conviction.” Rana, No. 10-60539, slip op. at 5. This argument, the Fifth Circuit explained, “requires a tortured rendering of the word ‘single.’” Rana, No. 10-60539, slip op. at 5.

According to the court, “Such an interpretation would yield a counterintuitive result: The Attorney General would have the power to grant waivers ad infinitum to an alien who applied for them seriatim after each simple possession offense of 30 grams or less of marihuana, but an alien who applied for a waiver of two simple possession offenses at the same time would be inadmissible. It is unlikely that Congress wanted to give the Attorney General great discretion in the former case but none in the latter.” Rana,
No. 10-60539, slip op. at 5.

Instead, the court explained, “It is much more likely that when Congress indicated that waivers must be limited to ‘a single offense of simple possession of 30 grams or less of marijuana,’ it meant the total number of offenses, not the number sought to be waived each time an alien asks.” Rana, No. 10-60539, slip op. at 5-6.

Consequently, the court held that “an alien who has been convicted of two or more offenses of simple possession of 30 grams or less of marihuana is ineligible for a § 1182(h) [INA § 212(h)] waiver, regardless of whether he previously received a § 1182(h) waiver related to one of his offenses.”