Brian Ridenour v. Boehringer Ingelheim Corp.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2192
___________
Andrei Popescu-Mateffy, *
*
Petitioner, *
* Petition for Review of a Final
v. * Decision of the Board of
* Immigration Appeals.
Eric H. Holder, Jr., Attorney General *
of the United States of America, * [PUBLISHED]
*
Respondent. *
___________
Submitted: February 13, 2012
Filed: May 2, 2012
___________
Before WOLLMAN, ARNOLD, and SMITH, Circuit Judges.
___________
PER CURIAM.
Andrei Popescu-Mateffy petitions for review of an order of the Board of
Immigration Appeals (BIA or "Board") determining that Popescu-Mateffy's state
conviction for possession of drug paraphernalia in a motor vehicle renders him
ineligible for waiver of inadmissibility under Immigration and Nationality Act (INA)
§ 212(h), 8 U.S.C. § 1182(h). We deny the petition.
I. Background
Popescu-Mateffy, a native and citizen of Romania, was admitted to the United
States on August 22, 2005, as a nonimmigrant, temporary skilled worker. Although

-- 1 of 9 --

he was authorized to remain in the United States for a period not to exceed November
30, 2005, Popescu-Mateffy remained in the United States beyond that date without
authorization. Additionally, he was employed as a commercial truck driver for
Proactive Transportation, Inc. without the authorization of the Department of
Homeland Security (DHS). He married a United States citizen in February 2007.
On April 16, 2007, Popescu-Mateffy, while driving a tractor-trailer for his
employer, was pulled over by a South Dakota Highway Patrol officer. After observing
Popescu-Mateffy, the officer arrested him for driving under the influence. The officer
found a pipe and approximately .25 ounces—approximately seven grams—of
marijuana in the tractor-trailer's cab.
On May 22, 2007, Popescu-Mateffy pleaded guilty in the Circuit Court of
Lyman County, South Dakota, to, inter alia, possession of drug paraphernalia in a
motor vehicle, in violation of South Dakota Codified Laws § 22-42A-3. The court1
ordered Popescu-Mateffy to pay a fine of $200 and serve 30 days in jail, 22 days of
which were suspended. The court also revoked Popescu-Mateffy's driving privileges
for 90 days. See S.D. Codified Laws § 23-32-12-52.3 ("Upon a first conviction or a
first adjudication of delinquency for any violation, while in a vehicle, of §§ 22-42-5
to 22-42-9, inclusive, 22-42A-3, or 22-42A-4, the court shall revoke the driver license
or driving privilege of the driver so convicted for a period of ninety days.").
Section 22-42A-3 provides:1
No person, knowing the drug related nature of the object, may use or to
possess with intent to use, drug paraphernalia to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, store, contain, conceal,
inject, ingest, inhale, or otherwise introduce into the human body any
controlled substance or marijuana in violation of this chapter. Any
person who violates any provision of this section is guilty of a Class 2
misdemeanor.
-2-

-- 2 of 9 --

After Popescu-Mateffy's arrest, DHS issued a Notice to Appear to Popescu-
Mateffy, charging him as removable from the United States based on violations of two
provisions: (1) INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as having remained in
the United States for a time longer than permitted, and (2) INA § 237(a)(1)(C)(i), 8
U.S.C. § 1227(a)(1)(C)(i), as having failed to maintain nonimmigrant status or comply
with the conditions of that status. Popescu-Mateffy appeared before the immigration
judge (IJ) and conceded removability with respect to both charges in the Notice to
Appear.
For relief from removal, Popescu-Mateffy applied for adjustment of status. His
spouse filed an immigrant visa petition on his behalf, which the IJ approved. But
Popescu-Mateffy's conviction for possession of drug paraphernalia in a motor vehicle
was a controlled substance violation that rendered him inadmissible—and thus
ineligible for adjustment of status—pursuant to INA § 212(a)(2)(A)(i)(II), 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). As a result, Popescu-Mateffy also applied for waiver of
inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h). Section 212(h) of the INA
provides that the Attorney General has discretion to waive inadmissibility for a
controlled-substance violation if, among other requirements, the inadmissibility
"relates to a single offense of simple possession of 30 grams or less of marijuana."
The IJ determined that Popescu-Mateffy's conviction for possession of drug
paraphernalia did not bar him from § 212(h) relief because it related to 30 grams or
less of marijuana. The IJ noted that "the drug paraphernalia that [Popescu-Mateffy]
was convicted of possessing was a pipe" and that Popescu-Mateffy "was found with
.25 ounces or a little over 7 grams of marijuana. The pipe also contained marijuana
residue." The IJ "f[ound] that [Popescu-Mateffy's] conviction for possession of drug
paraphernalia relates to a 'single offense of simple possession of 30 grams or less of
marijuana,' making [him] . . . eligible for INA § 212(h) waiver." The IJ granted
Popescu-Mateffy's applications for adjustment of status and waiver of inadmissibility.
-3-

-- 3 of 9 --

DHS appealed the IJ's decision to the BIA. A single member of the BIA2
sustained DHS's appeal and ordered Popescu-Mateffy removed from the United States.
The BIA explained that after the IJ's decision,
the Board decided Matter of Espinoza, 25 I&N Dec. 118 (BIA 2009),
finding that an alien who is inadmissible based on a drug paraphernalia
offense may qualify for a waiver of inadmissibility under section 212(h)
of the Act if that offense "relates to a single offense of simple possession
of 30 grams or less of marijuana." See id. However, the Board noted
several caveats to its finding in Espinoza.
According to the BIA, the first "caveat" under Espinoza is that an offense is not related
to a single offense of simple possession of 30 grams or less of marijuana "if it contains
elements that make it substantially more serious than 'simple possession.'" "For
example, possessing marijuana in a prison or near a school may relate to marijuana
possession, but such offenses do not relate to simple possession because they are
inherently more serious than the basic crime." (Citing Espinoza, 25 I&N Dec. at 125.)
The second "caveat" is that "removal proceedings are not a venue for the relitigation
of criminal prosecutions." (Citing Espinoza, 25 I&N Dec. at 125.) The BIA explained
that "[i]f the fact of conviction is sufficient to show that an alien committed actions
in addition to (or more culpable than) a single offense of simple possession of a small
Section 1003.1(e)(5) of 8 C.F.R. provides, in relevant part:2
A single Board member may reverse the decision under review if such
reversal is plainly consistent with and required by intervening Board or
judicial precedent, by an intervening Act of Congress, or by an
intervening final regulation. A motion to reconsider or to reopen a
decision that was rendered by a single Board member may be
adjudicated by that Board member unless the case is reassigned to a
three-member panel as provided under the standards of the case
management plan.
-4-

-- 4 of 9 --

amount of marijuana, then the inquiry is at an end, and section 212(h) relief is
unavailable."
Applying Espinoza to the present case, the BIA found that Popescu-Mateffy was
ineligible for waiver under § 212(h), meaning that he was not eligible for adjustment
of status. The BIA explained that Popescu-Mateffy "plead[ed] guilty to possession of
drug paraphernalia in a motor vehicle" and that South Dakota Codified Laws § 32-12-
52.3 "provides for the enhanced penalty of revocation of a driver's license if the
predicate offense occurred in a motor vehicle. The BIA found that "[t]his penalty
enhancement, the fact of which was admitted by [Popescu-Mateffy], removes
[Popescu-Mateffy] from the purview of section 212(h) of the Act."
II. Discussion
Popescu-Mateffy seeks review of the BIA's order determining that he is
ineligible for waiver of inadmissibility under INA § 212(h). He contends that because
he was found with just seven grams of marijuana, the possession-of-drug-
paraphernalia offense "relates to a single offen[s]e of 30 grams or less of marijuana[,]
making him eligible for . . . waiver relief pursuant to § 212(h) of the INA."
"Where, as here, the BIA issues an independent decision without adopting the
IJ's conclusions, we review only the BIA decision." Constanza v. Holder, 647 F.3d
749, 753 (8th Cir. 2011) (per curiam). "We review the BIA's legal determinations de
novo, giving substantial deference to its interpretation of statutes and regulations." Id.
Under Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467
U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), we must defer to the
BIA's determination if "(1) the statute is ambiguous or silent as to the
issue at hand and (2) the agency's interpretation is neither arbitrary,
capricious, nor manifestly contrary to the statute."
-5-

-- 5 of 9 --

Olivan-Duenas v. Holder, 416 F. App'x 678, 679 (10th Cir. 2011) (unpublished order
and judgment) (quoting Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir. 2010)).
"'[I]n the immigration context where officials exercise especially sensitive political
functions that implicate questions of foreign relations,'" our exercise of "'judicial
deference to the Executive Branch is especially appropriate.'" Id. (quoting Niang v.
Gonzales, 422 F.3d 1187, 1196–97 (10th Cir. 2005)).
An "alien convicted of, or who admits having committed, or who
admits committing acts which constitute the essential elements of" a
violation of law relating to a controlled substance is inadmissible.
INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). The Attorney
General may exercise his discretion and grant such an alien a waiver of
inadmissibility if the controlled substance violation related "to a single
offense of simple possession of 30 grams or less of marijuana." Id.
§ 212(h), 8 U.S.C. § 1182(h).
Blandon v. United States, 444 F. App'x 319, 324 (11th Cir. 2011) (unpublished per
curiam).
Because "the waiver statute does not define the term 'simple possession' . . . ,we
conclude that the meaning of the term was open to interpretation by the BIA." Olivan-
Duenas, 416 F. App'x at 679–80. As a result, Popescu-Mateffy "must show that the
interpretation is arbitrary, capricious, or manifestly contrary to the statute." Id. at 680.
In Espinoza, the BIA interpreted the § 212(h) inadmissibility waiver with
respect to possession-of-drug-paraphernalia offenses. According to the BIA, "while
the language of section 212(h) likely encompasses some offenses involving possession
of drug paraphernalia, it does not encompass all such offenses." 25 I&N Dec. at 123.
Because the BIA found that "the scope of section 212(h) [was] uncertain as it relates
to drug paraphernalia offenses, [it had to] resolve the uncertainty in a reasonable
manner." Id.
-6-

-- 6 of 9 --

Relying on Nijhawan v. Holder, 557 U.S. 29 (2009), the BIA concluded that the
term "offense" used in § 212(h) "refer[s] to the specific unlawful acts that made the
alien inadmissible, rather than to any generic crime." Id. at 124. The BIA found that
if "Congress wished to make waivers available only to aliens who had committed
simple marijuana possession, using a broad expression like 'relates to' would have
been an unlikely choice of words." Id. As a result, the BIA
conclude[d] that Congress envisioned something broader, specifically, a
factual inquiry into whether an alien's criminal conduct bore such a close
relationship to the simple possession of a minimal quantity of marijuana
that it should be treated with the same degree of forbearance under the
immigration laws as the simple possession offense itself.
Id. at 124–25.
Based on its plain-language analysis, the BIA held
that an alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the
Act may apply for a section 212(h) waiver if he demonstrates by a
preponderance of the evidence that the conduct that made him
inadmissible was either "a single offense of simple possession of 30
grams or less of marijuana" or an act that "relate[d] to" such an offense.
Id. at 125. But the BIA then set forth "several caveats" that "an applicant must bear
. . . in mind" in his "attempt[ ] to make such a showing." Id.
First, waivers are only available for offenses that merit the same lenient
treatment as simple possession. An offense does not "relate[] to a single
offense of simple possession of 30 grams or less of marijuana" if it
contains elements that make it substantially more serious than "simple
possession." For example, possessing marijuana in a prison or near a
school may relate to marijuana possession, but such offenses do not
relate to simple possession because they are inherently more serious than
-7-

-- 7 of 9 --

the basic crime. See Matter of Moncada, 24 I&N Dec. 62 (BIA 2007).
Second, removal proceedings are not a venue for the relitigation of
criminal prosecutions. See Matter of Ruiz-Massieu, 22 I&N Dec. 833,
844 (BIA 1999), and cases cited therein. If the fact of conviction is
sufficient to show that an alien committed actions in addition to (or more
culpable than) a single offense of simple possession of a small amount
of marijuana, then the inquiry is at an end, and section 212(h) relief is
unavailable.
Id. (first emphasis added).
Here, the issue is whether the BIA's exclusion of a conviction for possession of
drug paraphernalia within a motor vehicle from the waiver statute "is a reasonable and
permissible interpretation of the statute." Olivan-Duenas, 416 F. App'x at 679.
Popescu-Mateffy was found in possession of drug paraphernalia while driving a
tractor-trailer and pleaded guilty to "possession of drug paraphernalia in a motor
vehicle." The possession statute—South Dakota Codified Laws § 22-42A-
3—penalizes the possession of drug paraphernalia without any reference to the
location of the conduct. But the second statute of conviction—South Dakota Codified
Laws § 32-12-52.3—provides for an enhanced penalty for conduct that occurs within
a vehicle. For a first-time violation of the possession statute, for conduct that occurs
within a vehicle,"the court shall revoke the driver license or driving privilege of the
driver so convicted for a period of ninety days." S.D. Codified Laws § 32-12-52.3.
The BIA found that this "penalty enhancement" for possessing drug
paraphernalia in a vehicle sufficiently demonstrates conduct that is "substantially more
serious than 'simple possession'" and "removes [Popescu-Mateffy] from the purview
of section § 212(h) of the Act." As the government notes, "possession of drug
paraphernalia in a motor vehicle carries an inherent danger to the driver, passengers,
and others on the road." We conclude that "[t]he BIA's interpretation of § 1182(h)'s
waiver for "a single offense of simple possession of . . . marijuana' as not including
-8-

-- 8 of 9 --

[the possession of drug paraphernalia in a vehicle] is not arbitrary, capricious, or
manifestly contrary to the statute." Olivan-Duenas, 416 F. App'x at 681.
III. Conclusion
Accordingly, we deny the petition.
______________________________
-9-

-- 9 of 9 --