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BIA: Burden to show possession with intent to distribute isn’t aggravated felony is on respondent; says categorical approach inapplicable

The BIA held that the burden of proof rests with the noncitizen respondent to show that a possession of marijuana with intent to distribute conviction is not an aggravated felony because it involved a “small” amount of the drug, and that the respondent may prove this by using evidence outside the record of conviction. Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) (Pauley, Mullane, and Guendelsberger, Board members). Board member Pauley wrote the panel’s decision.

This case involved an LPR convicted of possession with the intent to give or distribute less than one-half ounce of marijuana. Va. Rev. Stat. § 18.2-248.1(a)(1). The IJ concluded that this constituted a controlled substances offense, but not an aggravated felony under the illicit trafficking in a controlled substance subsection, INA § 101(a)(43)(B). Matter of Castro Rodriguez, 25 I&N Dec. at 699.

The BIA relied on its decision in Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), in which it explained that the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. §§ 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a  misdemeanor. Matter of Castro Rodriguez, 25 I&N Dec. at 701 (citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003)).

This “mitigation exception,” the Board added, is not an element of the federal offense, thus “the categorical approach is not applicable to a determination of these facts”—that is, relying on evidence outside the record of conviction may prove mitigation eligibility. Matter of Castro Rodriguez, 25 I&N Dec. at 701. As additional support for abandoning the categorical approach that normally dictates analysis of the INA, the Board turned to Nijhawan v. Holder, 557 U.S. 29 (2009), in which the Supreme Court condoned looking outside the record of conviction to determine whether a theft offense involved a loss of $10,000 or more because this information was not usually an element required for conviction.

The “circumstance-specific” approach used in Nijhawan, the BIA concluded, is appropriate for determining whether a possession of marijuana with intent to distribute conviction involved a “small” amount of marijuana and no
remuneration was involved. Matter of Castro Rodriguez, 25 I&N Dec. at 702. If these criteria are satisfied—that is, the conviction involved a small amount of marijuana and no remuneration—than it does not meet the illicit trafficking definition of aggravated felony. Matter of Castro Rodriguez, 25 I&N Dec. at 699 n.2.

Proving that a small amount was involved and no remuneration was present, the Board continued, is up to the respondent. This is because to receive the benefit of the mitigation exception in the federal possession context, the criminal defendant “bears the burden of proving the additional facts that trigger this mitigating exception, namely, the ‘smallness’ of the amount of marijuana and the absence of remuneration.” Matter of Castro Rodriguez, 25 I&N Dec. at 701 (citing Hamlin, 319 F.3d at 671).

The less than 30 grams of marijuana involved in Castro Rodriguez’s offense (though not his conviction), the Board added, “may, in general, serve as a useful guidepost in determining whether an amount is “small’.” Matter of Castro Rodriguez, 25 I&N Dec. at 703. However, because no evidence was introduced regarding whether Castro Rodriguez was convicted with the intent to receive remuneration, the Board remanded. Matter of Castro Rodriguez, 25 I&N Dec. at 704.

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