Summary
This Eighth Circuit opinion reviews a Board of Immigration Appeals decision denying cancellation of removal to a lawful permanent resident convicted of a state marijuana offense. The court addresses whether the categorical approach requires comparing the state statute to the federal Controlled Substances Act as it existed at the time of conviction or at the time of removal proceedings. Applying the time-of-conviction rule endorsed by multiple circuits and recent Supreme Court precedent, the court holds that the state and federal definitions of marijuana match, rendering the petitioner removable and ineligible for relief. Consequently, the petition for review is denied.
Topics
Practice areas
Questions Presented
- Whether the appropriate federal definition of marijuana for the categorical approach is the one in effect at the time of the conviction rather than at the time of removal proceedings
- Whether the North Dakota definition of marijuana is overbroad compared to the federal definition such that the conviction does not qualify as a controlled‑substance offense
Holdings
- The Court holds that the proper comparison is with the Controlled Substances Act definition as it existed at the time of the state conviction.
- The Court holds that the North Dakota definition is not overbroad; it is sufficiently similar to the federal definition at the time of conviction, so the conviction qualifies as a controlled‑substance offense.
- The petition for review is denied.
Key quotations
“The IJ specifically noted that the Eighth Circuit had never directly decided the issue but explained that this Court has suggested that the proper version of a federal definition is the one in effect at the time of the petitioner’s conviction, not at the time of a petitioner’s removal proceedings.” (at 6)
“A ‘time-of-conviction’ rule provides both the Government and the alien with maximum clarity at the point at which it is most critical for an alien to assess (with aid from his defense attorney) whether ‘pending criminal charges may carry a risk of adverse immigration consequences.’” (at 7)
Factual background
Salinas, a Mexican citizen and lawful permanent resident since 2007, was convicted in North Dakota of marijuana possession in 2011 and aggravated assault of a minor in 2021. DHS initiated removal proceedings in 2022, alleging removability under the controlled substance and child abuse provisions of the INA. Salinas conceded the child‑abuse ground but contested the controlled‑substance ground, arguing the statutory comparison should use the federal definition of marijuana in effect at the time of removal proceedings.
Procedural history
The Immigration Judge found Salinas removable under 8 U.S.C. §1227(a)(2)(B)(i) and ineligible for cancellation of removal; the Board of Immigration Appeals affirmed; Salinas filed a petition for review in this Court.