Alberto Hernandez-Munoz v. Jefferson Sessions, 702 F. App'x 601

Hernandez-Munoz applied for adjustment of status under 8 U.S.C. § 1255(i) and a waiver of inadmissibility under 8 U.S.C. § 1182(h).
He had a single conviction for possession of a small amount of marijuana, making him potentially inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II).
On direct examination his attorney elicited admissions that Hernandez-Munoz had used marijuana on numerous prior occasions.
The immigration judge (IJ) found him ineligible for the 212(h) waiver, concluding those admissions amounted to admissions of the essential elements of multiple possession offenses; the IJ noted that absent those admissions he would have granted relief.
The Ninth Circuit panel analyzed whether admissions of drug use constitute admissions to the essential elements of possession, concluding use is only circumstantial evidence of possession under controlling authorities.
The court granted the petition for review and remanded to the BIA, holding the admissions of use did not establish the essential elements of possession required to trigger inadmissibility.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admissions of drug use are admissions to the essential elements of possession under § 1182(a)(2)(A)(i)	Hernandez-Munoz: admissions were only to use, not possession; use is circumstantial evidence only	Government: admissions of acts that circumstantially show possession suffice to deny waiver; burden shifts to respondent to prove lack of possession	Held: admissions of use do not admit the essential elements of possession; use is at most circumstantial evidence, so inadmissibility not established
Whether respondent bore burden to disprove possession after admitting facts that are circumstantial evidence	Hernandez-Munoz: statutory text requires admission of essential elements; no burden to disprove mere use	Government: by admitting circumstantial facts, respondent assumed burden to prove non-possession	Held: court rejected government's burden-shifting argument based on plain statutory text; respondent met burden to show eligibility for relief

United States v. Martin, 984 F.2d 308 (9th Cir.) (use is only circumstantial evidence of possession)
United States v. Blackston, 940 F.2d 877 (3d Cir.) (use does not necessarily imply possession)
Flores-Arellano v. I.N.S., 5 F.3d 360 (9th Cir.) (distinguishing use from possession in immigration context)
People v. Morales, 25 Cal.4th 34 (Cal.) (California law treating use as circumstantial evidence of possession)
People v. Palaschak, 9 Cal.4th 1236 (Cal.) (same)
People v. Spann, 187 Cal. App. 3d 400 (Cal. Ct. App.) (same)
People v. Ayala, 334 P.2d 61 (Cal. Dist. Ct. App.) (same)