212(h) Waiver May be Available to Cure Convictions for Possession or Use of Drug Paraphernalia

The Board of Immigration Appeals has just ruled in Matter of Lael MARTINEZ ESPINOZA, 25 I&N Dec. 118 (BIA 2009) that:

(1) An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006), on the basis of a conviction for possession or use of drug paraphernalia; and

(2) An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if that offense “relates to a single offense of simple possession of 30 grams or less of marijuana.”

The case involved a citizen of Mexico, conceded his removability under section 212(a)(6)(A)(i) of the Act because he was unlawfully present in the United States, but who sought relief from removal in the form of adjustment of status under section 245(i) of the Act. Former section 245(i) allows certain individuals to obtain a Green Card inside the United States through the payment a $1,000.00 penalty fee to excuse minor immigration violations. Section 245(i) does not waiver criminal grounds of removability.

The Immigration Court ruled that the Respondent was not eligible to apply for a Green Card because of a 2006 Minnesota conviction for possessing drug paraphernalia, and that this conviction renders him ineligible for a waiver under section 212(h) of the Act because his offense did not “relate[] to a single offense of simple possession of 30 grams or less of marijuana”.

The Respondent appealed the Immigration Court’s decision, and the Board of Immigration Appeals concluded that the Respondent’s Minnesota conviction for possessing drug paraphernalia does render him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, and that in order to adjust he must obtain a 212(h) waiver, but that the underlying Minnesota criminal statute that the Respondent was convicted under encompasses some offenses that enable him to apply for a 212(h) waiver, and some that do not.

The Board further concluded to qualify for a 212(h) waiver, the Respondent must establish that his conviction “relates to a single offense of simple possession of 30 grams or less of marijuana.”

The Board remanded the case back to the Immigration Court to allow the Respondent the opportunity to establish that the conduct that resulted in his conviction related to a single offense of simple possession of 30 grams or less of marijuana.

Matthew L. Kolken, Esq.