Yesterday the Board published a new precedent decision analyzing  whether and when “a single offense involving possession for one’s own use of thirty grams or less of marijuana” can include conduct that involved several offenses.  The new case is Matter of Davey, 26 I&N Dec. 37 (BIA 2012), and it offers both a bit of clarification and probably a source of more confusion on issues of statutory interpretation.

First for the good news, the Board held that the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” in 8 U.S.C. §1227(a)(2)(B)(i) calls for a “circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime.”  The Board went on to hold that an alien “may be covered by the exception” for a single offense involving personal use of marijuana if “all the alien’s crimes were closely related to or connected with a single incident in which the alien possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimes was inherently more serious than simple possession.” Thus, if a person was caught smoking marijuana and was convicted of both possession of marijuana and
possession of drug paraphernalia, as happened here, the Board would consider the whole thing a “single offense.”

The points of confusion involve particular definitions of words by the Board, and these could lead to conflict with past decisions.  First, the Board created a bit of a Sorites problem in attempting to define “single offense,” as it now apparently “refers to the totality of an alien’s specific acts on a single occasion,” not to what statutory offense or offenses are charged. A “single occasion” is quite broad.  Would it, for example, include a person who attends a rock concert and is ticketed three separate times for smoking marijuana?  It’s seems to be a “single occasion,” but also seems to involve more than a “single offense.” This interpretation seems to conflict with the Board’s interpretation of the term “single scheme of criminal misconduct” in applying 8 U.S.C. § 1227(a)(2)(A)(ii).  For example, the Board has said that “when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct.” Matter of Islam, 25 I. & N. Dec. 637 (BIA 2011). What would this mean for the new “single offense” definition?  Multiple puffs on a joint?  What about transferring your marijuana from one form of paraphernalia (the baggie) to another form of paraphernalia (the pipe)?  What if the alien possessed both marijuana and hashish (a marijuana derivative) and planned to smoke them together at the same time?

The Board also attempted to highlight the statute’s use of the word “involving,” which the Board said further broadens the scope of the statute because it includes “any offense or act that is closely related or closely connected to” marijuana possession. Confusingly, the Board concluded that “a crime ‘involves’ possession of 30 grams or less of marijuana for personal use if the particular acts that led to the alien’s conviction were closely related to such conduct.”  But the Board said this would not include the crime of “being under the
influence of marijuana.” We have a hard time seeing how “being under the influence of marijuana” is “more serious,” in the words of the Board, than possessing marijuana for one’s own personal use.