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Immigration Law

CA5 on Marijuana Personal Use Exception: Flores Esquivel v. Lynch

"In this appeal, we reject the Board of Immigration Appeals’s (BIA) interpretation of the statute it administers and vacate the BIA decision under review. We do so because the plain language of the relevant statute clearly contradicts the interpretation that the BIA would give it.

Under § 237 of the Immigration and Nationality Act (INA), aliens are rendered removable by most drug convictions, except those that constitute “a single offense involving possession for one’s own use of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i). The BIA has interpreted this “personal-use exception” to cover only offenses that, in addition to constituting “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” are also the “least serious” drug offenses under the law of the state in which they were committed. Here, the BIA relied solely on this interpretation of the exception in holding the petitioner, Rene Flores Esquivel, ineligible for cancellation of removal. See 8 U.S.C. § 1229b(d)(1). Because we find no statutory basis for the additional requirement that the BIA’s interpretation has tacked onto the personal-use exception, we GRANT Flores’s petition for review, VACATE the BIA’s decision, and REMAND this matter to the BIA for further proceedings." - Flores Esquivel v. Lynch, Oct. 1, 2015.]

[Hats way off to a legend in the Texas immigration litigation bar, Bryan K. Bates!]