CUELLAR
25 I. & N. Dec. 850
| BIA | 2012Background
- Cuellar-Gomez, a Salvadoran permanent resident, was convicted in Wichita muni court Jan 3, 2008 for marijuana possession and sentenced to jail and fine.
- Sept 29, 2008, a Kansas district court convicted him of possession after a prior municipal conviction, a felony.
- DHS filed removal notices alleging deportability for aggravated felony and for a State-law related offense under 237(a)(2)(B)(i).
- Board, on March 7, 2012, heard Cuellar-Gomez’s appeal challenging the Wichita judgment as a valid predicate.
- Board found the Wichita judgment a valid conviction and valid predicate for both removability and recidivist possession, denying relief.
- Order: appeal dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Wichita judgment a conviction under 101(a)(48)(A)? | Cuellar-Gomez argues no. | Board says yes; proceedings were genuine criminal. | Yes; it is a conviction. |
| Does the Wichita ordinance constitute a State-law offense under 237(a)(2)(B)(i)? | Cuellar-Gomez argues it’s municipal, not State law. | Wichita ordinances supplement State law and are State-law for 237(a)(2)(B)(i). | Yes; Wichita ordinance counts as State-law for 237(a)(2)(B)(i). |
| Can the 2008 Wichita conviction serve as a predicate for a recidivist offense under 844(a)? | Cuellar-Gomez contends not charged/proven as recidivist. | Conviction charged and prosecuted as recidivist; valid predicate. | Yes; it supports recidivist possession predicate. |
| Do two marijuana offenses violate the “single offense” exception for 30 grams or less? | Two offenses preclude single-offense exemption. | Two offenses cannot constitute a single offense. | Two offenses are not a single offense. |
Key Cases Cited
- Matter of Rivera-Valencia, 24 I. & N. Dec. 484 (BIA 2008) (conviction defined for immigration purposes in genuine criminal proceedings)
- Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004) (conviction definition under immigration law hinges on criminal proceeding validity)
- Lopez v. Gonzales, 549 U.S. 47 (U.S. 2006) (state offenses that correspond to CSA felonies are aggravated felonies)
- Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (S. Ct. 2010) (recidivist simple possession convictions must be charged as recidivist offenses)
- Waller v. Florida, 397 U.S. 387 (U.S. 1970) (double jeopardy principles and State vs. municipal prosecutions)
- Russello v. United States, 464 U.S. 16 (U.S. 1983) (statutory interpretation and expressio unius considerations)