2 Analyses of this admin-law by attorneys
BIA: Burden to show possession with intent to distribute isn’t aggravated felony is on respondent; says categorical approach inapplicable
University of Denver Sturm College of LawMay 17, 2012The BIA held that the burden of proof rests with the noncitizen respondent to show that a possession of marijuana with intent to distribute conviction is not an aggravated felony because it involved a “small” amount of the drug, and that the respondent may prove this by using evidence outside the record of conviction. Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) (Pauley, Mullane, and Guendelsberger, Board members). Board member Pauley wrote the panel’s decision.
Symposium: Moncrieffe and the Categorical Approach
University of Denver Sturm College of LawOctober 9, 2012Subsequent to filing the writ of certiorari in this case, the Board issued a precedential decision making clear that an alien has the opportunity in immigration court to show that section 21 U.S.C. § 841(b)(4)’s mitigating exception applies. See Matter of Castro-Rodriguez, 25 I&N Dec. 698, 702 (BIA 2012) (citing, inter alia, Nijhawan v. Holder, 557 U.S. 29 (2009)). So, it’s all left in the hands of the alien.