U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5 /07 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Nauck, James R., Esq. OHS/ICE Office of Chief Counsel - CHL
The Nauck and Kerr Law Firm 5701 Executive Ctr Dr., Ste 300
1220 Yeaman's Hall Rd. Charlotte, NC 28212
Hanahan, SC 29410

Name: MARSH, KEVIN GEORGE A 086-946-931

Date of this notice: 3/14/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Pauley, Roger

Lt!lc:u,:;
Userteam: Docket

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Cite as: Kevin George Marsh, A086 946 931 (BIA March 14, 2017)
U.S'; Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A086 946 931 - Charlotte, NC Date:

MAR 1 't 2017
In re: KEVIN GEORGE MARSH

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: James R. Nauck, Esquire

CHARGE:

Notice: Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] -

Convicted of controlled substance violation

The respondent, a native and citizen of Jamaica and lawful permanent resident of the United
States, appeals from the Immigration Judge's decision dated February 4, 2016, which found that
he was removable as charged and granted voluntary departure under section 240B of the
Immigration and Nationality Act, 8 U.S.C. 1229c. The Department of Homeland Security
(DHS) has not replied to the respondent's brief on appeal. The request for oral argument is
denied. 8 C.F.R. 1003.l(e)(7). The appeal will be sustained in part, and the record will be
remanded.

We review Immigration Judges' findings of fact for clear error, but we review questions of
law, discretion, and judgment, and all other issues in appeals de novo. 8 C.F.R.
1003.l(d)(3)(i), (ii).

The DHS alleged that on October I 0, 2012, the respondent was convicted in South Carolina
State court of possession of greater than 1 ounce of marijuana and charged that he was
removable under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. I227(a)(2)(B)(i) (convicted of
controlled substance violation) (Exh. 1). After considering the respondent's testimony, the
Immigration Judge found that the DHS met its burden to establish that the respondent was not
convicted of a single offense involving possession for one's own use of 30 grams or less of
marijuana and was therefore removable as charged (I.J. at 3-4). See Matter of Dominguez
Rodriguez, 26 I&N Dec. 408 (BIA 2014); Matter ofDavey, 26 I&N Dec. 37 (BIA 2012).

We agree with the argument on appeal that, due to the imprecise nature of the respondent's
testimony in question, it was error for the Immigration Judge to conclude that the DHS has met
its burden to prove by clear and convincing evidence that the respondent is removable as charged
(Trans. of October 25, 2016, hearing at 5-11). Respondent's Brief at 8-12. In this regard, the
appeal is sustained.

The criminal documents of record indicate that the respondent pleaded guilty to the lesser
included charge of possession of greater than 1 ounce of marijuana, but they do not include any
plea colloquy or other plea documents (Exh. 2). The Immigration Judge referred to, but did not
Cite as: Kevin George Marsh, A086 946 931 (BIA March 14, 2017)
A08'6 946 931

rely on, the certified arrest warrant, noting that it was evidence that would buttress the
removability determination (I.J. at 4 n.4; Exh. 2). The respondent argues that the Immigration
Judge may not consider this document. Respondent's Brief at 12-15. However, under the
circumstance-specific approach applicable here, the Immigration Judge may consider any
reliable and probative evidence, which the respondent may then challenge or rebut. Matter of
Dominguez-Rodriguez, supra, at 411, 414.

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Under the circumstances of this case, we will remand the record to afford the DHS the
opportunity to demonstrate that the arrest warrant is reliable evidence or to present any other
reliable and probative evidence to satisfy its burden to prove the respondent's removability.
Accordingly, the following order will be entered.

ORDER: The appeal is sustained in part, and the record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for the entry of a new
decision.

FOR THE BOA

2
Cite as: Kevin George Marsh, A086 946 931 (BIA March 14, 2017)
 r
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.-

IMMIGRATION COURT
5701 EXECUTIVE CENTER DR. #400
CHARLOTTE, NC 28212
In the Matter of
Case No.: A086-946-931
MARSH, KEVIN GEORGE
Respondent IN.REMOVAL PROCEEDINGS

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ORDER OF THE IMMIGRATION JUDGE

This is a summary of the decision entered on '2.. / '{

This memorandum is solely for the convenience of the parties. If the
/,G. I ' ' ,

proceedings should be appealed or reopened, the oral decision will become

the official opinion in the case.
[ ] The respondent was ordered removed from the United States to
or in the alternative to . . 1 L
Respondent's application for voluntary departure was denied and
respondent was ordered removed to or in the
alternative to .
Respondent's application for voluntary departure was granted until '-/ 'f JG:,
upon posting a bond in the amount of$ ':!tJ0.00
with an alternate order of removal to JAMA IC.A.
II
Respondent's application for:
[ ] Asylum was ( )granted )denied( )withdrawn.
[ ] Withholding of removal was )granted ( )denied )withdrawn.
[ ] A Waiver undr Section ___ was { )granted ( )denied ( )withdrawn.
iJ
[ ] Cancellation of removal under section 240A(a) was { )granted )denied
( )withdrawn.
Respondent's application for:
Cancellation under section 240A(b)(1) was ( ) granted ) denied
( ) withdrawn. If granted, it is ordered that the respondent be issued
all appropriate documents necessay to give effect to this order.
Cancellation unt section 24 OA(bf (2) was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Adjustment of Status under Section was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
qll appropriated documents necessary to give effect to this order.
Respondent's application of ( ) withholding of removal { } deferral of
removal under Article III of the Convention Against Torture was
( ) granted ( ) denied '( ) witJ:idrawn.
Respondent's statu$. was rescinded under section 246.
Respondent is admitted to the United States as a until
As a condition of admission, respondent is to pasta$ ____ bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respondent was advised of the limitation on discretionary relief for
failure to.appear as ordered in the Immigration Judge's oral decision.
Proceedin s were trminpted.
/
Other: 0 CAZfaa-. .,,,..,.""'.,c:,1
Dat'( /(,

Immigration Judge
 .

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTNE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHARLOTTE, NORTH CAROLINA

IN THE MATIER OF ) IN REMOVAL PROCEEDINGS

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)
MARSH, Kevin George ) File No: A 086-946-931
)
Respondent ) MINUTE ORDER
)
) February 4, 2016
)

COMES NOW the Court and renders its decision following the July 29, 2015, decision of

the Board of Immigration Appeals ("Board"). The Court's prior decision of January 15, 2014, is

adopted and incorporated herein by reference. After review of the record of proceedings, the

Court finds the following:

FACTS

1. That the respondent is a male native and citizen of Jamaica. Exhibit 1.

2. That on May 1, 2006, the respondent was admitted to the United States as a

non-immigrant temporary worker. Id.

3. That on September 14, 2009, the respondent adjusted status to that of a lawful

permanent resident under section 245 of the Immigration and Naturalization Act ("Act"). Id

4. That on October 10, 2012, the respondent was convicted in Horry County, South

Carolina, for Possession of More than One Ounce of Marijuana, in violation of South Carolina

Code Annotated 44-53-370(d)(2). Id.; Exhibit 2.

5. That on December I 1, 20 I 2, the Department of Homeland Security ("DHS")

served the respondent with a Notice to Appear ("NTA''), charging him with removability under

section 237(a)(2)(B)(i) of the Act. Exhibit 1.

 6. That at a master calendar hearing held on June 17, 2013, the respondent appeared

pro se and admitted the factual allegations contained in the NTA. The Court therefore found the

respondent removable as charged under INA 237(a)(2)(B)(i) by clear and convincing evidence

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based on the respondent's admissions and the record of criminal proceedings.

7. That on October 17, 2013, the respondent, through counsel, moved to reopen the

pleadings to contest his removability under INA 237(a)(2)(B)(i).

8. That on January 15, 2014, the Court granted the respondent's motion to reopen

the pleadings to reflect the respondent's denial of the charge of removability under section

237(a)(2)(B)(i) of the Act. Order of the Immigration Judge (January 15, 2014). In its decision,

the Court affinned its prior ruling that the OHS met its burden and established the respondent's

removability by clear and convincing evidence. INA 240(c)(3). Id.

9. That on February 14, 2014, the respondent timely appealed the Court's decision to

the Board. Notice of Appeal from a Decision of an Immigration Judge (February 14, 2014).

10. That on July 29, 2015, the Board returned the record to the Court to "inquire into

the factual circumstances surrounding the [the respondent's] crime, and afford him an

opportunity to dispute the information contained in his arrest warrant.

11. That on October 26, 2015, the respondent, accompanied by counsel, appeared at

an individual hearing and thereafter the Court reserved for a written decision.

ANALYSIS

The Board has held the exception for the ground of removability under section

237(a)(2)(B)(i) of the Act, requiring that a drug conviction be other than "a single offense

involving possession for one's own use of thirty grams or less of marijuana," necessitates an

inquiry into the underlying facts of the case. Matter ofDominguez-Rodriguez, 26 I&N Dec. 408

2
A 086-946-931 February 4, 2016
(BIA 2014) (affirming Matter ofDavey, 26 I&N Dec. 37 (BIA 2012), holding that the exception

language found in section 237(a)(2)(B)(i) requires a "circumstance-specific" approach in which a

court may rely on evidence related to the nature of the alien's conduct); Hernandez-Zavala v.

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Lynch, 806 F.3d 259, 264 (4th Cir. 2015) (citing Nijhawan v. Holder, 557 U.S. 29, 34 (2009));

see also Rojas v. Att'y Gen. of U.S., 728 F.3d 203, 216 (3d Cir. 2013) (applying the

circumstance-specific approach of Nijhawan to the removal ground under section 237(a)(2)(B)(i)

of the Act). Under the circumstance-specific approach, an Immigration Judge is permitted to

examine the "particular circumstances in which an offender committed the crime on a particular

occasion." Matter ofDominguez-Rodriguez, 26 I&N Dec. at 411 (citing Moncrieffe v. Holder,

133 S. Ct. 1678, 1691 (2013)). The circumstance-specific approach "contemplates the use of

fundamentally fair procedures that give respondents a reasonable opportunity to dispute any

OHS claim that the exception is inapplicable." Id. at 413.

The Court concludes that the OHS has met its burden and established the respondent's

removability by clear and convincing evidence. INA 240(c)(3). The respondent was convicted

for possessing over one ounce of marijuana. Exhibit 2. 1 At issue is exactly how much more than

one ounce did the respondent possess at the time of his arrest, and whether this quantity

exceeded thirty grams (or 1.06 ounces). In applying the circumstance-specific approach from

Nij hawan, the Court finds that respondent was arrested with a quantity of marijuana totaling at

least thirty grams.

In light of the remand, the Court conducted a thorough inquiry with the respondent under

oath as to the nature of his conviction. The respondent testified he routinely used marijuana

every other day for the treatment of his asthma. He further testified that prior to his arrest, he

paid $300 for three, one-gallon-size bags of marijuana, with a total product weight of twenty-
1 The Court takes administrative notice that one ounce is equivalent to 28.35 grams.

3
A 086-946-931 February 4, 2016
eight to thirty grams.2 The respondent admitted that he never weighed the marijuana.

Subsequently, however, gesturing with his hands and using a standard sheet of letter paper to

represent a plastic bag, the respondent testified that each bag contained enough marijuana to fill

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just below the bottom one-inch of the bag. The respondent later explained that, based on his

expertise as a habitual user of marijuana, one ounce of marijuana would have filled the bottom

two inches of a one-gallon-size bag. When given the opportunity, counsel for the respondent did

not rebut this testimony. See Matter ofDominguez-Rodriguez, 26 I&N Dec. at 413. Based on

the respondent's admissions that each of the three bags contained an amount of approximately

one inch of marijuana, and that two inches of marijuana would constitute approximately twenty

eight grams, the Court finds that the respondent was apprehended with at least thirty grams of

marijuana on his person. 3

In sum, the Court finds that the respondent's conviction was not "a single offense

involving possession for one's own use of thirty grams or less of marijuana" as required for the

exception under INA 237(a)(2)(B)(i). The evidence of record clearly indicates he was in

possession of more than thirty grams of marijuana at the time of his arrest. Accordingly, the

Court finds that the DHS has met its burden that the respondent is removable under INA

237(a)(2)(B)(i) by clear and convincing evidence. INA 240(c)(3).

Accordingly, the Court enters the following:

2
The respondent further explained that the street price of marijuana was $100 for seven grams; however, because
the respondent had a good relationship with his dealer, the dealer sold him three bags, each containing an excess of
seven grams apiece.
3
Further, assuming without deciding that the Court was permitted to consider the respondent's certified arrest
warrant, this evidence only further buttresses the Court's determination. The arrest warrant indicates the respondent
was arrested with approximately sixty grams of marijuana in three separate one-gallon-size bags during a lawful
traffic stop for having head light out on the vehicle he was driving. Exhibit 2. The respondent was subsequently
indicted for Possession of Marijuana with Intent to Distribute in violation of South Carolina Code Annotated 44-
53-370(b)(2). Id The respondent pled guilty to the lesser included charge of Possession of More than One Ounce
of Marijuana, in violation of South Carolina Code Annotated 44-53-370(d)(2), on October 10, 2012. Id

A 086-946-931 February 4, 2016

 ORDER
IT IS HEREBY ORDERED that the respondent be REMOVED from the United States to

Jamaica on the charge contained in the Notice to Appear.

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Date
\)
Y.STUARTCOucH
U.S. Immigration Judge
Charlotte, North Carolina

A 086-946-931 February 4, 2016