BIA Holds That An Adjustment Of Status Applicant With Special Immigrant Juvenile Status May, In Conjunction With A Waiver Under INA §245(h)(2)(B), Seek To Waive His Or Her Inadmissibility Under INA §212(a)(2)(A)(i)(II), Based On A Single Offense Of Simple Possession Of 30 Grams Of Less Of Marijuana. The “Simple Possession” Exception Of §245(h)(2)(B) Calls For A Circumstances – Specific Inquiry Into The Nature OF The Conduct Surrounding The Applicant’s Simple Possession Offense.
On June 23, 2021, the Board of Immigration Appeals (BIA or Board) sustained the appeal of a decision by the Immigration Judge (IJ) finding Respondent ineligible for a waiver of inadmissibility under INA §245(h)(2)(B), and thus ineligible for adjustment of status (AOS) per INA §245(a), and remanded the record for further proceedings. Respondent had entered the U.S. without inspection (EWI) at the age of 4 and was placed into removal proceedings at 12; he conceded removability. He then filed a Special Immigrant Juvenile (SIJ) petition which was approved, but 4 years later he was convicted of possession of 50 grams or less of marijuana, violating §2C:35-10(a)(4) of the New Jersey Statutes Annotated. Before the IJ, Resplendent conceded his conviction rendered him inadmissible under INA §212(a)(2)(A)(i)(II) as one convicted of a controlled substance offense.
Respondent sought to avoid removal with a defensive AOS application under §245(a) but the IJ, finding him inadmissible per 212(a)(2)(A)(i)(II), held he was ineligible because he was not “admissible to the United States” under 245(a)(2). Respondent requested a 245(h)(2)(B) waiver, which applies to SIJ applicants for AOS, arguing that §2C:35-10(a)(4) “reaches offenses involving the simple possession of 30 grams or less of marijuana.” However, the IJ concluded that Respondent was ineligible because the “simple possession” exception in 245(h)(2)(B) only waives one’s inadmissibility under INA §212(a)(2)(C), which applies to those reasonably believed to have engaged in illicit drug trafficking. The BIA noted that on appeal, it reviews the scope of the “simple possession” exception de novo and whether that provision waives Respondent’s inadmissibility under §212(a)(2)(A)(i)(II).
In beginning its analysis of the scope of the §245(h)(2)(B) waiver, the Board first noted that the section contains a parenthetical clause listing provisions under §§212(a)(2) and (3) and stated that the “simple possession” exception is “integrated into this parenthetical directly after the list of provisions” found in 212(a)(2) but before the list of provision under 212(a)(3); this, included the decision, suggests that the exception modifies all of the provisions of (a)(2) but “does not apply to the list of provisions under section 212(a)(3).” Further, when the “simple possession” exception uses the phrase “such paragraph”, found the BIA, “it is clearly referring to paragraph 212(a)(2) in its entirety – not just to subparagraph 212(a)(2)(C) of the Act, its nearest antecedent.” Because other canons of statutory construction support this conclusion, the “natural reading” of the exception is that it applies with equal force to §§212(a)(2)(A),(B), and (C).
The Board also stated that, although the IJ found that the “simple possession” exception only waives §212(a)(2)(C) inadmissibility for suspected traffickers, illicit trafficking “has long been viewed as a significantly more serious crimes than simple possession because trafficking requires distribution, exchange, or some form of transfer of controlled substances” between actors; simple possession, on the other hand, is by definition not illicit trafficking, as it “does not involve any intent to transfer or exchange.” In the IJ’s view, noted the opinion, one with SIJ status with a single conviction for simple possession of 30 grams of less of marijuana would rarely qualify for a §245(h)(2)(B) waiver, while a convicted trafficker would. This “unlikely premise” rebuts any other interference but that the waiver applies to all 3 subsections. The BIA, therefore, held that an SIJ AOS applicant may, in conjunction with a 245(h)(2)(B) waiver, seek to waive inadmissibility under 212(a)(2)(A)(i)(II).
In parsing whether the “simple possession” exception is circumstance-specific, the Board rejected Respondent’s contention that it should use the categorical approach; the IJ had held that the circumstance-specific approach, an inquiry into the nature of the conduct that caused the inadmissibility, was proper – but did not apply that approach. The decision agreed with the IJ and ordered the record remanded for the court to apply the circumstance-specific approach to the case in the first instance. This, held the BIA, is the “proper method for determining” one’s eligibility for a waiver of inadmissibility. Thus Respondent must establish his eligibility under §245(a)(2)(B). The appeal was sustained and the record remanded. Matter of Moradel, 28 I&N Dec. 310 (BIA 2021).