CASTRO RODRIGUEZ, 25 I. & N. Dec. 698

Respondent Wilmer Rodrigo Castro Rodriguez, a Bolivian native and lawful US permanent resident, was convicted in Virginia of possession with intent to give or distribute less than 1/2 ounce of marijuana (Virginia 18.2-248.1(a)(1)); sentence: 12 months with 11 months suspended; conviction amended from felony to misdemeanor based on quantity.
Immigration Judge (IJ) found removal under 237(a)(2)(B)(i) but not an aggravated felony under 101(a)(43)(B) due to a mitigating 21 U.S.C. § 841(b)(4) exception.
IJ concluded respondent showed a “small” amount of marijuana and distribution without remuneration, thus not an aggravated felony and eligible for cancellation of removal.
DHS appealed arguing the mitigating exception does not apply or cannot be proven with evidence outside the conviction record.
Board majority held the alien may introduce probative evidence outside the conviction record to establish the § 841(b)(4) mitigation and remanded for further fact-finding on remuneration and the precise amount.
Record reflects the marijuana quantity (less than 30 grams) and a lunch box with packaging materials/scales, with credibility findings on remuneration requiring further factual development.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether outside-record evidence may be used to negate an aggravated felony	Castro argues evidence beyond the record is admissible	DHS argues such evidence is improper or insufficient	Yes; evidence outside the record may be used for § 841(b)(4) mitigation
How to classify 'small' marijuana quantity (mixed question of law and fact)	Quantity up to 30 grams generally supports ‘small’	Quantity alone cannot resolve; not a fixed standard	De novo review for smallness; 30 grams is a useful guidepost
Whether possession with intent to distribute for a small amount can be mitigated for no remuneration	Merges with Aruna: mitigating facts may apply	DHS contends no defense if not proven	Mitigation appropriate if facts show no remuneration
Burden of proof to establish the mitigating facts under § 841(b)(4)	Castro bears the burden by preponderance	State bears no burden on these facts	Castro bears burden; must prove by preponderance
Remand for further fact-finding on remuneration and intent	Record insufficient to resolve remuneration/intent	Remand unnecessary if evidence conclusive	Record remanded for further proceedings

Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (mitigating § 841(b)(4) facts used to avoid aggravated felony decision)
Nijhawan v. Holder, 557 U.S. 29 (U.S. 2009) (circumstance-specific approach to certain facts in § 841(b)(4) analysis)
Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007) (precedent on how facts affect drug trafficking determinations)
Catwell v. Attorney General of the United States, 623 F.3d 209 (3d Cir. 2010) (small amount definition and considerations of mitigating facts)
United States v. Eddy, 523 F.3d 1268 (10th Cir. 2008) (small amount for no remuneration not a lesser included offense)
Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. 2011) (application of § 841(b)(4) mitigating facts in distribution context)
Garcia-Echavarria v. United States, 376 F.3d 507 (6th Cir. 2004) (burden on defendant to show mitigating facts under § 841(b)(4))
Garcia v. Holder, 638 F.3d 511 (6th Cir. 2011) (retains burden-shifting approach to § 841(b)(4) analysis)
Moncada, 24 I&N Dec. 62 (BIA 2007) (contextual factors for determining ‘small’ quantity)
Davis v. Commonwealth, 406 S.E.2d 922 (Va. Ct. App. 1991) (evidence of packaging as distribution intent factor)
Lopez v. Gonzales, 549 U.S. 47 (U.S. 2006) (definition of felony-punishment correspondence to CSA)
Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007) (illustrative note on evidentiary scope)
United States v. Campbell, 317 F.3d 597 (6th Cir. 2003) (evidence beyond conviction record considerations)