By Guest Blogger Linus Chan (Staff Attorney, DePaul University Asylum and Immigration Law Clinic)In deciding Matter of Cuellar-Gomez, 25 I&N Dec. 850 (BIA July 18, 2012), the BIA answered three important questions of crimmigration law: when is a conviction “criminal”, what is meant by “state law”, and finally, how should immigration courts apply the categorical approach to decide whether someone with two marijuana possession convictions could qualify as a “drug trafficker”?The year 2008 was not a good one for Cuellar-Gomez. In January, he was charged and found guilty in Wichita Municipal Court for violating a municipal ordinance forbidding the possession of marijuana.

Individuals with two or more marijuana offenses also can be subject to removal as aggravated felons, if the second offense is charged as a recidivist offense. Matter of Cuellar-Gomez, 25 I. & N. Dec. 850, 862 (BIA 2012), distinguishing Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). Additionally, in places where marijuana use has not been legalized but penalties for the use of small amounts have been significantly lowered, noncitizens very often face low-level marijuana charges without the assistance of court-appointed counsel who would be required to advise them of the immigration consequences of their charges.