We received an excellent win from the Board this morning on an appeal where the Immigration Judge had concluded our client was not eligible to apply for immigration relief, because he had two convictions for the possession of marijuana. The issue in the appeal is whether the first conviction was actually a “conviction” when the second conviction ocurred. The reason this matters is that under the current BIA precedent, if a person has a conviction for possessing marijuana and gets a second conviction, the second is treated as a drug trafficking offense and thus an Aggravated Felony.

Although the second conviction was prosecuted as a recidivist offense, our client was actually still awaiting sentencing on the first conviction when he committed the second offense. We argued in our appeal that under both Kansas law and the federal Controlled Substances Act, a “conviction” isn’t actually final until all appeals are exhausted. That means while the State of Kansas prosecuted the second conviction as a “recidivist offense,” it wasn’t a recidivist offense for federal immigration purposes and, therefore, wasn’t an Aggravated Felony.

At the time he committed the second offense, he did not have a final prior conviction for possession of marijuana, because he still hadn’t been sentenced in the first case. That means, this young man, whose parents are citizens, is married to a US citizen, and who has a US citizen child, can apply to for forgiveness and hopefully be allowed to stay in the United States.

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