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10 Cir: Apple can lead to deportation if it’s 2nd marijuana conviction because 2 convictions arising from same activity aren’t ‘single offense’ under controlled substances deportation ground

The U.S. Court of Appeals for the Tenth Circuit held that the phrase “single offense” in the controlled substances offense basis for deportation, INA § 237(a)(2)(B)(i), does not apply to more than one drug crime. Martinez-Mercado v. Holder, No. 11-9535, slip op. (10th Cir. July 27, 2012) (Kelly, Murphy, and Holmes, JJ.). Judge Murphy wrote the panel’s decision.

This case involved an individual who became an LPR in 2002 and was convicted in 2007 of possession of marijuana, Utah Code Ann. § 58-37-8(2)(a)(i), and possession of drug paraphernalia (an apple, as described below), Utah Code Ann. § 58-37a-5(1). An IJ found Martinez-Mercado removable for having been convicted of controlled substances offenses and ineligible for cancellation of removal because he was convicted prior to accumulating seven years of continuous residence in the USA as required by INA § 240A(a)(2). Martinez-Mercado, No. 11-9535, slip op. at 2-3. The BIA affirmed.

Despite his two convictions, Martinez-Mercado argued that he fell within the “personal use exception”—that is, the provision in INA § 237(a)(2)(B)(i) that provides for deportation upon conviction of a controlled substances offense except if convicted of “a single offense involving possession for one’s own use of 30 grams or less of marijuana.” Martinez-Mercado, No. 11-9535, slip op. at 3. The BIA didn’t buy this argument. Martinez-Mercado, No. 11-9535, slip op. at 4.

Neither did the Tenth Circuit. Martinez-Mercado, the court explained, “equates ‘offense’…with ‘act,’ and he argues that his marijuana-possession and drug-paraphernalia possession convictions were based on a single act relating to possession for one’s own use of 30 grams or less of marijuana.” Martinez-Mercado, No. 11-9535, slip op. at 5. Unlike the multiple convictions ground of removal, INA § 237(a)(2)(A)(ii), which requires the IJ to figure out whether the convictions arose “out of a single scheme of criminal misconduct,” the controlled substances offense provision leaves no room to inquire about the circumstances of conviction.

All that matters is the number of convictions. As the court put it, “we cannot construe ‘single offense’ as used in § 1227(a)(2)(B)(i) [INA § 237(a)(2)(B)(i)] as applicable to more than one controlled-substance conviction.” Martinez-Mercado, No. 11-9535, slip op. at 7. Martinez-Mercado’s two convictions thus rendered him ineligible for the personal use exception.

The court also noted that the IJ was correct to conclude that Martinez-Mercado was convicted prior to accumulating seven years of continuous residence. The Supreme Court’s decision in Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012), the court concluded, rejected an argument identical to Martinez-Mercado’s claim that he could count his parents’ period of continuous residence as his own while he was a minor. Martinez-Mercado, No. 11-9535, slip op. at 8-9.

Lastly—proving that law is always fun even if that’s not always evident from reading cases—the drug paraphernalia Martinez-Mercado used was apparently an apple. Yes, the fruit. According to Joe Palazzolo at the Wall Street Journal’s Law Blog, “In 2007…police in Utah caught him with an apple retrofitted for pot smoking, according to his lawyers. (You poke a hole in the top, and on the side, they meet somewhere in the middle, and voila.) The fruit had residue from use.” Fascinating.

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Posted by César on January 15, 2013 on 9:00 am 8 Comments
Filed Under: 10th Circuit Court of Appeals, cancellation of removal, controlled substance offense, stop-time rule

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