Section 237(a)(2)(B)(i) of the Act renders any alien deportable who has been convicted of a violation of a law relating to a controlled substance. There is an exception, however, if the violation was for “a single offense involving possession for one’s own use of 30 grams or less of marijuana.” See Section 237(a)(2)(B)(i) of the Act.
How this law has been applied has varied. Basically, it was indeterminate whether the term “single offense” covered just that—a single possession charge and subsequent conviction, or whether it covered multiple criminal charges and their subsequent convictions, so long as they all arose from the same criminal act of the possession of 30 grams or less of marijuana.
The Board decided that issue in Matter of Davey, 26 I&N Dec. 37 (BIA 2012). In Matter of Davey, the alien was convicted of two criminal offenses, the possession of marijuana and the possession of drug paraphernalia. The Board concluded that both of these criminal offenses were covered under the waiver because both crimes bore a direct relation to a single criminal incident—the possession of 30 grams or less of marijuana for one’s own use. The Board stated that the possession of drug paraphernalia would thus be covered by the exception where the paraphernalia was merely an adjunct to the offender’s simple possession or ingestion of 30 grams or less of marijuana.
The Board noted, however, that paraphernalia offenses would only be covered by the waiver if associated with simple possession. If any paraphernalia appears to bear any association with the manufacture, smuggling, or distribution of marijuana or any other drug, then it will not be covered. Therefore, according to the Board, an alien who possesses a simple pipe or rolling papers would be covered by the waiver, but not an alien who possesses a drug scale.
This is a fair result from the Board. The Board stated, in reaching its conclusion, that it could “conceive of no reason why Congress would except an alien from deportability for actually possessing a small amount of marijuana for personal use, yet deny such leniency simply because, for example, the marijuana was found in a baggie.” Such is a well-reasoned and fair interpretation of the law.