Since the Supreme Court published its decision in Moncrieffe v. Holder, which essentially redefined the law on marijuana distribution convictions, the Board has responded by remanding cases even where the issue that was raised in Moncrieffe was not originally presented.
In Moncrieffe, the Supreme Court held that “[i]f a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.” This would seem to place the burden of proof on the government to establish that the offense either involved remuneration or was more than a small amount.
The Board’s most recent published decision on this question is Matter of Castro-Rodriguez, 25 I. & N. Dec. 698 (BIA 2012), where the Board had said it was the immigrant’s burden to prove his crime involved no remuneration or was for a small amount.
But if recent unpublished decisions mean anything, the Board has heard the Supreme Court and is no longer applying Matter of Castro-Rodriguez. For example, in a recent unpublished case, Matter of Gul, 2013 WL 2613057 (BIA 2013), the Board remanded stating that
“in light of the Supreme Court’s recent decision in Moncrieffe v. Holder it is appropriate to remand the record to the Immigration Judge for further consideration of the issue of whether the Department of Homeland Security has established that the respondent is subject to removal from the United States under the provisions of section 237(a)(2)(A)(iii) of the Act.”