The BIA held that the exception to the controlled substances offense ground of removal for “a single offense involving possession for one’s own use of thirty grams or less of marijuana” turns on the noncitizen’s conduct rather than the number of offenses for which the noncitizen was convicted. Matter of Davey, 26 I&N Dec. 37 (BIA Oct. 23, 2012) (Cole, Pauley, and Greer, Board members). Member Pauley wrote the panel’s decision.

As I write in my forthcoming book Crimmigration Law (American Bar Association 2015), the circumstance-specific approach “represents a dramatic and important move away from courts’ traditionally steadfast reliance on the categorical approach.”Despite the Supreme Court’s long emphasis on the categorical approach and the narrowness of the Nijhawan Court’s analysis (focused as it was on the specific language of the fraud or deceit type of aggravated felony), the BIA has expanded the circumstance-specific approach’s reach. In Matter of Davey, 26 I&N Dec. 37, 39 (BIA 2012), the Board applied this unique analytical method to the controlled substance offense’s exception for a single offense involving 30 grams or less of marijuana for personal use. The Board held that the circumstance-specific approach was the proper method to use to determine whether a migrant was involved in a “single offense.”