Cite as 24 I&N Dec. 424 (BIA 2007) Interim Decision #3594 

In re Miguel Angel MARTINEZ-ZAPATA, Respondent 

File A94 791 455 - Los Fresnos 

Decided December 19, 2007 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) Any fact (including a fact contained in a sentence enhancement) that serves to increase 

the maximum penalty for a crime and that is required to be found by a jury beyond a 

reasonable doubt, if not admitted by the defendant, is to be treated as an element of the 

underlying offense, so that a conviction involving the application of such an enhancement 

is a conviction for the enhanced offense. Matter of Rodriguez-Cortes, 20 I&N Dec. 587 

(BIA 1992), superseded. 

(2) The exception under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1182(h) (2000), for an alien convicted of a single offense of simple possession of 

30 grams or less of marijuana does not apply to an alien whose conviction was enhanced 

by virtue of his possession of marijuana in a “drug-free zone,” where the enhancement 

factor increased the maximum penalty for the underlying offense and had to be proved 

beyond a reasonable doubt to a jury under the law of the convicting jurisdiction. Matter 

of Moncada, 24 I&N Dec. 62 (BIA 2007), clarified. 

FOR RESPONDENT: Jaime M. Diez, Esquire, Brownsville, Texas 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Joey L. Caccarozzo, Assistant 

Chief Counsel 

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members. 

PAULEY, Board Member: 

In a decision dated February 15, 2007, an Immigration Judge found the 

respondent removable and pretermitted his applications for a waiver under 

section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h)

(2000), in conjunction with his application for adjustment of status under 

section 245 of the Act, 8 U.S.C. § 1255 (2000). The respondent has appealed

from that decision. The appeal will be dismissed. In adjudicating the appeal,

we have reexamined our precedent decision in Matter of Rodriguez-Cortes, 

20 I&N Dec. 587 (BIA 1992), and find that it is superseded in light of the

decision of the United States Supreme Court in Apprendi v. New Jersey, 530 

U.S. 466 (2000).

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I. FACTUAL AND PROCEDURAL HISTORY 

The respondent is a native and citizen of Mexico who was admitted to the 

United States on April 15, 2006. The record before the Immigration Judge

reflects that on January 12, 2005, the respondent was convicted in Texas by a

plea of no contest to possession of less than 2 ounces of marijuana in a 

drug-free zone. The respondent’s offense was raised from a Class B 

misdemeanor in violation of section 481.121(b)(1) of the Texas Health and

Safety Code to a Class A misdemeanor pursuant to section 481.134(f)(1), 

because the offense was committed in a drug-free zone. 

These proceedings were initiated against the respondent with the issuance

of the Notice to Appear on October 25, 2006. During the proceedings, the 

Immigration Judge found the respondent removable as charged and 

pretermitted his application for a waiver of inadmissibility under section

212(h) of the Act in conjunction with his application for adjustment of status. 

According to the Immigration Judge, the respondent failed to establish his

eligibility for a waiver despite the fact that he demonstrated that he was 

convicted of possession of less than 30 grams of marijuana. The Immigration

Judge specifically found that the respondent’s conviction was not for “simple 

possession” within the meaning of section 212(h) because the offense was 

committed in a drug-free zone, likening it to the conviction discussed in Matter 

of Moncada, 24 I&N Dec. 62 (BIA 2007). 

II. ISSUES 

On appeal, the respondent contends that the Immigration Judge erred in 

finding him ineligible for a waiver under section 212(h) of the Act because his

conviction is distinguishable from that in Matter of Moncada, supra. In that 

case, we held that the exception under section 237(a)(2)(B)(i) of the Act, 

8 U.S.C. § 1227(a)(2)(B)(i) (2000), for an alien convicted of possessing

30 grams or less of marijuana for his own use did not apply to an alien

convicted under a State statute containing an element requiring that the offense

occur in a prison or other protected location. We expressly reserved one of the

questions presented by this case, namely whether that same result obtains in 

a situation in which “the above or a similar aggravating aspect of the offense

is established by virtue of a statutory penalty enhancement for marijuana 

possession offenses, rather than . . . being a formal element.” Matter of 

Moncada, supra, at 64 n.2. In that regard, we cited the Supreme Court’s 

decision in Apprendi v. New Jersey, supra, at 494 n.19, where the Court noted 

that a sentence enhancement can be the “functional equivalent of an element 

of a greater offense than the one covered by the jury’s guilty verdict.” 

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Following Apprendi, this case requires us to reexamine our decision in 

Matter of Rodriguez-Cortes, supra, in which we held that a sentence 

enhancement does not create a separate offense, but only imposes additional 

punishment, and therefore does not constitute a conviction. As explained

below, we find that our decision in Matter of Rodriguez-Cortes is superseded

in light of Apprendi v. New Jersey. Consequently, we hold that any fact 

(including a fact contained in a sentence enhancement) that serves to increase 

the maximum penalty for a crime to which a defendant is subject and that is

required by the law in the convicting jurisdiction to be found beyond a

reasonable doubt by a jury, if not admitted by the defendant, is to be treated as 

an element of the underlying offense. A conviction involving the application

of such an enhancement is therefore a “conviction” for the enhanced offense. 

III. ANALYSIS 

According to the respondent, his conviction is distinguishable from that in 

Matter of Moncada, supra, because the “drug-free zone” aspect of the

conviction arises from an enhancement provision in Texas law that did not 

require knowledge of possession in the drug-free zone, but merely the simple 

fact that the possession occurred in such a protected zone. However, the 

respondent’s argument is misplaced because our decision in Matter of 

Moncada did not require knowledge to be an element of the offense. We held 

instead that a conviction for possession of 30 grams or less of marijuana under

a statute requiring that the offense occur in a prison or other correctional

setting did not qualify for the exception to deportability under section

237(a)(2)(B)(i) of the Act because of the aggravating element of the location 

of the possession offense, e.g., in prison.

The real issue in this case is whether the aggravating factor of possessing

the marijuana in a drug-free zone is distinguishable because that aggravating 

circumstance takes the form under Texas law of a sentence enhancement rather 

than a formal element of the underlying offense pled to by the respondent. In 

order to answer this question, we must consider the impact of the recent series 

of Supreme Court opinions addressing judicial fact-finding when imposing 

sentences under the United States Constitution as they impact our decision. 

In 2000, the Supreme Court rendered a landmark decision in modern 

sentencing law in Apprendi v. New Jersey, supra. That case involved a 

challenge to a sentence imposed in a State court by a defendant who was 

convicted of a firearms violation that carried a prison term of a minimum of 

5 to a maximum of 10 years. After the defendant’s guilty plea, the State of

New Jersey filed a motion to enhance the sentence under the State’s hate crime 

statute, alleging that the defendant committed the offense to intimidate a 

person or group because of racial animus. After finding by a preponderance 

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of the evidence that the crime was racially motivated, the sentencing court 

imposed a 12-year sentence, exceeding the maximum sentence under the 

statute of conviction by 2 years. In deciding Apprendi, the Supreme Court 

held that the Constitution requires that “[o]ther than the fact of a prior 

conviction,1

 any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved beyond 

a reasonable doubt.” Id. at 490. 

Subsequently, the Supreme Court decided Blakely v. Washington, 542 U.S. 

296 (2004), invalidating a sentence imposed under Washington’s sentencing 

guidelines system. In that case, the State court sentenced the defendant to a 

term of imprisonment more than 3 years above the 53-month statutory standard

range for his offense based on the court’s finding that the defendant had acted

with deliberate cruelty. According to the Washington sentencing guidelines 

at the time, deliberate cruelty was a statutorily enumerated ground for 

departing from the standard sentencing range, and Washington law required

an exceptional sentence to be based on factors other than those used in 

computing the standard range. Because the defendant had not made 

admissions supporting the sentencing court’s finding of deliberate cruelty, the

Supreme Court held that the judicial application of an enhanced range under

the Washington guidelines violated the defendant’s constitutional right to a 

jury trial. Importantly, the Supreme Court made this finding despite the fact 

that the sentence imposed did not exceed the statutory maximum penalty of 

10 years. Id. at 303-04. But under the State’s sentencing laws, the sentence 

had exceeded “the maximum sentence a judge may impose solely on the basis

of the facts reflected in the jury verdict or admitted by the defendant.” Id. at 

303. 

However, not all facts bearing on sentencing are required to be found

beyond a reasonable doubt as a result of Apprendi and Blakely. In 

United States v. Booker, 543 U.S. 220 (2005), the Supreme Court made 

determinations under the United States Sentencing Guidelines advisory,

thereby allowing such findings to continue to be made solely by Federal judges

under a preponderance of the evidence standard. Further, the States have 

responded in various ways to Apprendi and Blakely, such that a careful 

understanding of specific State law is needed to determine whether a particular 

sentencing factor, if not admitted during the criminal proceedings, would be 

The exception for prior convictions is derived from the Supreme Court’s holding in 

Almendarez-Torres v. United States, 523 U.S. 224 (1998). 

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required to be found beyond a reasonable doubt by a jury.2 See Matter of 

Lopez-Amaro, 20 I&N Dec. 668 (BIA 1993) (distinguishing Matter of 

Rodriguez-Cortes, supra, and finding that the simple fact that a State statute 

is an “enhancement” does not mean that it functions to exculpate an alien from

having been convicted of the enhancement factor where the State law required 

the enhancement factor to be charged and proven to the jury). 

In light of the foregoing, we now turn to the question whether the sentencing

enhancement in this case qualifies as an “element” of the respondent’s offense

such that he has been “convicted” of possession of marijuana in a drug-free 

zone. Section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (2000), 

defines the term “conviction” to mean 

a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt 

has been withheld, where—

 (i) a judge or jury has found the alien guilty or the alien has entered a plea of 

guilty or nolo contendere or has admitted sufficient facts to warrant a finding of 

guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the 

alien’s liberty to be imposed. 

As previously noted, the respondent was convicted of the offense of

possession of 2 ounces or less of marijuana in a drug-free zone. This arose as 

a combination of his violation of Texas Health and Safety Code section

481.121(b)(1), a Class B misdemeanor, and the separate statutory “drug-free 

zone” enhancement. According to section 481.121(a), “a person commits an 

offense if the person knowingly or intentionally possesses a usable quantity of

marihuana,” and is guilty of a Class B misdemeanor under section 

481.121(b)(1) “if the amount of marihuana possessed is two ounces or less.” 

The respondent’s conviction under 481.121(b)(1) was enhanced to a Class A 

misdemeanor under Texas Health and Safety Code section 481.134(f)(1), which 

provides, in pertinent part, as follows:

 An offense otherwise punishable under Section . . . 481.121(b)(1) is a Class A

misdemeanor if it is shown on the trial of the offense that it was committed: 

(1) in, on, or within 1,000 feet of any real property that is owned, rented, or 

leased to a school or school board or the premises of a public or private youth center 

. . . . 

The enhancement in this case subjected the respondent to an increased 

punishment beyond the maximum allowed for a conviction under section 

Apprendi v. New Jersey, supra, and its progeny focus on admissions by the defendant or 

findings by a jury beyond a reasonable doubt. Offenses carrying maximum sentences of 

6 months or less, however, are not required to be tried before a jury. See Lewis v. United 

States, 518 U.S. 322 (1996). 

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481.121(b)(1).3 According to Texas law in the wake of Apprendi, the “drugfree zone” factor under section 481.134(f), if it is not admitted by the defendant 

in the criminal case, must be found by a jury beyond a reasonable doubt.4 See 

Harris v. State, 125 S.W.3d 45 (Tex. App. 2003). Further, Texas is a 

jury-sentencing State, so the drug-free zone factor was required to be submitted 

to the jury, absent admission by the defendant. See id. 

Under these circumstances, we conclude that the drug-free zone factor in this

case constitutes the equivalent of an “element” of the respondent’s offense for 

removal purposes, in accordance with Apprendi and its progeny. Under Texas 

law, it increased the maximum punishment that the respondent could receive 

beyond that which would be authorized solely by a finding of possession of no

more than 2 ounces of marijuana. Further, Texas law gave the respondent the

right to a jury determination on this issue, and, by virtue of Apprendi, the 

prosecution was required to prove it to the jury beyond a reasonable doubt.

Moreover, because the drug-free zone factor is properly treated as an element 

of the respondent’s offense, we conclude that the respondent has been 

convicted of possession of marijuana in a drug-free zone, here a school-zone,

in accordance with section 101(a)(48)(A) of the Act. Consequently, our

decision in Matter of Rodriguez-Cortes, supra, is superseded with respect to 

any post-Apprendi sentencing factor that is shown to have been found in

accordance with the criminal law protections of a jury trial and burden of proof

afforded a defendant in relation to the elements of an offense.5 

Our decision in Matter of Rodriguez-Cortes, supra, comported with the 

common understanding of the law as it existed at the time, and its holding on 

the facts would remain the same in retrospect even under the rule set forth in

this case because of the structure of the sentencing scheme at issue in that case. 

The holding in Matter of Rodriguez-Cortes also continues to apply in 

pre-Apprendi sentencing determinations. However, in the aftermath of 

3 According to section 12.22 of the Texas Penal Code, a Class B misdemeanor in Texas is 

punishable by (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 

180 days; or (3) both such fine and confinement. Under section 12.21 of the Penal Code, a 

Class A misdemeanor in Texas is punishable by (1) a fine not to exceed $4,000; 

(2) confinement in jail for a term not to exceed 1 year; or (3) both such fine and confinement. 

4 Compare section 481.134(c) of the Texas Health and Safety Code, which is not subject to 

Apprendi in accordance with Harris v. United States, 536 U.S. 545 (2002), because it merely 

increases the statutory minimum sentence but does not exceed the statutory maximum 

sentence. See Williams v. State, 127 S.W.3d 442, 445 (Tex. App. 2004) (finding that section 

481.134(c) does not create a separate offense because its only effect is to raise the penalty 

when an enumerated offense is committed in a designated place); see also Uribe v. State, 573 

S.W.2d 819 (Tex. Crim. App. 1978). 5 The respondent makes no claim that he was not afforded due process of law in connection 

with his “drug-free zone” enhancement. 

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Apprendi and its progeny, the holding in Matter of Rodriguez-Cortes is 

superseded by the new rule applied in this case. Importantly, we point out that 

Apprendi and its progeny do not encompass all sentence enhancements; the 

Apprendi analysis will not result in all sentence enhancements being the 

equivalent of “elements” of an offense. Rather, those post-Apprendi

enhancements that may still permissibly be found by a preponderance of the

evidence by a sentencing judge, including those under the United States

Sentencing Guidelines and many State sentencing schemes, will not be the 

equivalent of an “element” of an offense. See, e.g., Cunningham v. California, 

127 S. Ct. 856 (2007); Blakely v. Washington, supra; Ring v. Arizona, 536 U.S. 

584 (2002). It is crucial that an examination of the specific statutory sentencing 

scheme be conducted in order to make the determination. To equate to an

element it must be shown that, under the law of the convicting jurisdiction, a

sentencing factor had to be proved to a jury beyond a reasonable doubt if it was

not admitted by the defendant.6 

In sum, because the sentence enhancement in this case serves as the 

functional equivalent of an offense element for constitutional purposes under 

Apprendi v. New Jersey, supra, we see no reason to distinguish between

instances in which an offense involving possession for one’s own use of a small 

quantity of marijuana is elevated to a higher penalty level because of a formal 

element in the statute of conviction relating to the location where the possession

takes place and situations where the increased penalty level is the result of a

similar protected location provision in the form of a sentence enhancement. 

The respondent’s conviction for possession of marijuana, based on an 

enhancement for possession in a drug-free zone, to which he pleaded nolo

contendere and was found guilty beyond a reasonable doubt, must be treated as 

a conviction in the same manner as if the statute contained such enhancement 

as a formal element. If the respondent had contested the “drug-free zone” 

aspect, Apprendi and Harris v. State, supra, would have required submission 

of that issue to a jury to be decided beyond a reasonable doubt. 

IV. CONCLUSION 

We find that Matter of Rodriguez-Cortes, supra, has been overtaken by legal

developments and is superseded in cases involving sentencing determinations 

Thus, we will treat as an element any such factor where the convicting jurisdiction’s law 

requires proof beyond a reasonable doubt to a jury, even if, under Apprendi, a State need not 

have required proof by that standard. We have no occasion here to decide whether we would 

treat as an element any such factor required by the convicting jurisdiction to be proved 

beyond a reasonable doubt to a court rather than a jury. See Harris v. United States, supra; 

see also Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004). 

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made subsequent to the Supreme Court’s decision in Apprendi v. New Jersey, 

supra. We agree with the Immigration Judge that Matter of Moncada, supra, 

applies in this case and that the respondent was not convicted of a “simple 

possession”offense within the meaning of section 212(h) of the Act because the 

offense was committed in a drug-free zone. We therefore concur with the 

Immigration Judge that the respondent is not eligible for a waiver under section

212(h) as a result of his conviction. Without a waiver, the respondent is not

eligible for adjustment of status because he is not admissible to the United 

States. Accordingly, the respondent’s appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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