United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 11-2192

___________

Andrei Popescu-Mateffy, *

*

Petitioner, *

* Petition for Review of a Final

v. * Decision of the Board of

* Immigration Appeals. 

Eric H. Holder, Jr., Attorney General *

of the United States of America, * [PUBLISHED]

*

Respondent. *

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Submitted: February 13, 2012

Filed: May 2, 2012

___________

Before WOLLMAN, ARNOLD, and SMITH, Circuit Judges.

___________

PER CURIAM.

Andrei Popescu-Mateffy petitions for review of an order of the Board of

Immigration Appeals (BIA or "Board") determining that Popescu-Mateffy's state

conviction for possession of drug paraphernalia in a motor vehicle renders him

ineligible for waiver of inadmissibility under Immigration and Nationality Act (INA)

§ 212(h), 8 U.S.C. § 1182(h). We deny the petition. 

I. Background

Popescu-Mateffy, a native and citizen of Romania, was admitted to the United

States on August 22, 2005, as a nonimmigrant, temporary skilled worker. Although
he was authorized to remain in the United States for a period not to exceed November

30, 2005, Popescu-Mateffy remained in the United States beyond that date without

authorization. Additionally, he was employed as a commercial truck driver for

Proactive Transportation, Inc. without the authorization of the Department of

Homeland Security (DHS). He married a United States citizen in February 2007. 

On April 16, 2007, Popescu-Mateffy, while driving a tractor-trailer for his

employer, was pulled over by a South Dakota Highway Patrol officer. After observing

Popescu-Mateffy, the officer arrested him for driving under the influence. The officer

found a pipe and approximately .25 ounces—approximately seven grams—of

marijuana in the tractor-trailer's cab. 

On May 22, 2007, Popescu-Mateffy pleaded guilty in the Circuit Court of

Lyman County, South Dakota, to, inter alia, possession of drug paraphernalia in a

motor vehicle, in violation of South Dakota Codified Laws § 22-42A-3. The court

1

ordered Popescu-Mateffy to pay a fine of $200 and serve 30 days in jail, 22 days of

which were suspended. The court also revoked Popescu-Mateffy's driving privileges

for 90 days. See S.D. Codified Laws § 23-32-12-52.3 ("Upon a first conviction or a

first adjudication of delinquency for any violation, while in a vehicle, of §§ 22-42-5

to 22-42-9, inclusive, 22-42A-3, or 22-42A-4, the court shall revoke the driver license

or driving privilege of the driver so convicted for a period of ninety days."). 

Section 22-42A-3 provides: 1

No person, knowing the drug related nature of the object, may use or to

possess with intent to use, drug paraphernalia to plant, propagate,

cultivate, grow, harvest, manufacture, compound, convert, produce,

process, prepare, test, analyze, pack, repack, store, contain, conceal,

inject, ingest, inhale, or otherwise introduce into the human body any

controlled substance or marijuana in violation of this chapter. Any

person who violates any provision of this section is guilty of a Class 2

misdemeanor.

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After Popescu-Mateffy's arrest, DHS issued a Notice to Appear to PopescuMateffy, charging himasremovable fromthe United States based on violations of two

provisions: (1) INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as having remained in

the United States for a time longer than permitted, and (2) INA § 237(a)(1)(C)(i), 8

U.S.C. § 1227(a)(1)(C)(i), as having failed to maintain nonimmigrant status or comply

with the conditions of that status. Popescu-Mateffy appeared before the immigration

judge (IJ) and conceded removability with respect to both charges in the Notice to

Appear. 

For relief from removal, Popescu-Mateffy applied for adjustment of status. His

spouse filed an immigrant visa petition on his behalf, which the IJ approved. But

Popescu-Mateffy's conviction for possession of drug paraphernalia in a motor vehicle

was a controlled substance violation that rendered him inadmissible—and thus

ineligible for adjustment of status—pursuant to INA § 212(a)(2)(A)(i)(II), 8 U.S.C.

§ 1182(a)(2)(A)(i)(II). As a result, Popescu-Mateffy also applied for waiver of

inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h). Section 212(h) of the INA

provides that the Attorney General has discretion to waive inadmissibility for a

controlled-substance violation if, among other requirements, the inadmissibility

"relates to a single offense of simple possession of 30 grams or less of marijuana." 

The IJ determined that Popescu-Mateffy's conviction for possession of drug

paraphernalia did not bar him from § 212(h) relief because it related to 30 grams or

less of marijuana. The IJ noted that "the drug paraphernalia that [Popescu-Mateffy]

was convicted of possessing was a pipe" and that Popescu-Mateffy "was found with

.25 ounces or a little over 7 grams of marijuana. The pipe also contained marijuana

residue." The IJ "f[ound] that [Popescu-Mateffy's] conviction for possession of drug

paraphernalia relates to a 'single offense of simple possession of 30 grams or less of

marijuana,' making [him] . . . eligible for INA § 212(h) waiver." The IJ granted

Popescu-Mateffy's applicationsfor adjustment ofstatus and waiver ofinadmissibility. 

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DHS appealed the IJ's decision to the BIA. A single member of the BIA 2

sustained DHS's appeal and ordered Popescu-Mateffy removed fromthe United States.

The BIA explained that after the IJ's decision, 

the Board decided Matter of Espinoza, 25 I&N Dec. 118 (BIA 2009),

finding that an alien who is inadmissible based on a drug paraphernalia

offense may qualify for a waiver of inadmissibility under section 212(h)

of the Act if that offense "relates to a single offense of simple possession

of 30 grams or less of marijuana." See id. However, the Board noted

several caveats to its finding in Espinoza. 

According to the BIA, the first "caveat" under Espinoza isthat an offense is not related

to a single offense ofsimple possession of 30 grams or less of marijuana "if it contains

elements that make it substantially more serious than 'simple possession.'" "For

example, possessing marijuana in a prison or near a school may relate to marijuana

possession, but such offenses do not relate to simple possession because they are

inherently more seriousthan the basic crime." (Citing Espinoza, 25 I&N Dec. at 125.)

The second "caveat" is that "removal proceedings are not a venue for the relitigation

of criminal prosecutions." (Citing Espinoza, 25 I&N Dec. at 125.) The BIA explained

that "[i]f the fact of conviction is sufficient to show that an alien committed actions

in addition to (or more culpable than) a single offense of simple possession of a small

Section 1003.1(e)(5) of 8 C.F.R. provides, in relevant part: 2

A single Board member may reverse the decision under review if such

reversal is plainly consistent with and required by intervening Board or

judicial precedent, by an intervening Act of Congress, or by an

intervening final regulation. A motion to reconsider or to reopen a

decision that was rendered by a single Board member may be

adjudicated by that Board member unless the case is reassigned to a

three-member panel as provided under the standards of the case

management plan.

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amount of marijuana, then the inquiry is at an end, and section 212(h) relief is

unavailable." 

Applying Espinoza to the present case, the BIA found that Popescu-Mateffywas

ineligible for waiver under § 212(h), meaning that he was not eligible for adjustment

of status. The BIA explained that Popescu-Mateffy "plead[ed] guilty to possession of

drug paraphernalia in a motor vehicle" and that South Dakota Codified Laws § 32-12-

52.3 "provides for the enhanced penalty of revocation of a driver's license if the

predicate offense occurred in a motor vehicle. The BIA found that "[t]his penalty

enhancement, the fact of which was admitted by [Popescu-Mateffy], removes

[Popescu-Mateffy] from the purview of section 212(h) of the Act."

II. Discussion

Popescu-Mateffy seeks review of the BIA's order determining that he is

ineligible for waiver of inadmissibility under INA § 212(h). He contendsthat because

he was found with just seven grams of marijuana, the possession-of-drugparaphernalia offense "relates to a single offen[s]e of 30 grams or less of marijuana[,]

making him eligible for . . . waiver relief pursuant to § 212(h) of the INA." 

"Where, as here, the BIA issues an independent decision without adopting the

IJ's conclusions, we review only the BIA decision." Constanza v. Holder, 647 F.3d

749, 753 (8th Cir. 2011) (per curiam). "We review the BIA's legal determinations de

novo, giving substantial deference to its interpretation ofstatutes and regulations." Id. 

Under Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467

U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), we must defer to the

BIA's determination if "(1) the statute is ambiguous or silent as to the

issue at hand and (2) the agency's interpretation is neither arbitrary,

capricious, nor manifestly contrary to the statute."

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Olivan-Duenas v. Holder, 416 F. App'x 678, 679 (10th Cir. 2011) (unpublished order

and judgment) (quoting Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir. 2010)).

"'[I]n the immigration context where officials exercise especially sensitive political

functions that implicate questions of foreign relations,'" our exercise of "'judicial

deference to the Executive Branch is especially appropriate.'" Id. (quoting Niang v.

Gonzales, 422 F.3d 1187, 1196–97 (10th Cir. 2005)). 

An "alien convicted of, or who admits having committed, or who

admits committing acts which constitute the essential elements of" a

violation of law relating to a controlled substance is inadmissible.

INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). The Attorney

General may exercise his discretion and grant such an alien a waiver of

inadmissibility if the controlled substance violation related "to a single

offense of simple possession of 30 grams or less of marijuana." Id.

§ 212(h), 8 U.S.C. § 1182(h). 

Blandon v. United States, 444 F. App'x 319, 324 (11th Cir. 2011) (unpublished per

curiam). 

Because "the waiver statute does not define the term 'simple possession' . . . ,we

conclude that the meaning of the term was open to interpretation by the BIA." OlivanDuenas, 416 F. App'x at 679–80. As a result, Popescu-Mateffy "must show that the

interpretation is arbitrary, capricious, or manifestly contrary to the statute." Id. at 680. 

In Espinoza, the BIA interpreted the § 212(h) inadmissibility waiver with

respect to possession-of-drug-paraphernalia offenses. According to the BIA, "while

the language ofsection 212(h)likely encompassessome offenses involving possession

of drug paraphernalia, it does not encompass all such offenses." 25 I&N Dec. at 123.

Because the BIA found that "the scope of section 212(h) [was] uncertain as it relates

to drug paraphernalia offenses, [it had to] resolve the uncertainty in a reasonable

manner." Id. 

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Relying on Nijhawan v. Holder, 557 U.S. 29 (2009), the BIA concluded that the

term "offense" used in § 212(h) "refer[s] to the specific unlawful acts that made the

alien inadmissible, rather than to any generic crime." Id. at 124. The BIA found that

if "Congress wished to make waivers available only to aliens who had committed

simple marijuana possession, using a broad expression like 'relates to' would have

been an unlikely choice of words." Id. As a result, the BIA 

conclude[d] that Congress envisioned something broader, specifically, a

factual inquiry into whether an alien's criminal conduct bore such a close

relationship to the simple possession of a minimal quantity of marijuana

that it should be treated with the same degree of forbearance under the

immigration laws as the simple possession offense itself. 

Id. at 124–25. 

Based on its plain-language analysis, the BIA held 

that an alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the

Act may apply for a section 212(h) waiver if he demonstrates by a

preponderance of the evidence that the conduct that made him

inadmissible was either "a single offense of simple possession of 30

grams or less of marijuana" or an act that "relate[d] to" such an offense.

Id. at 125. But the BIA then set forth "several caveats" that "an applicant must bear

. . . in mind" in his "attempt[ ] to make such a showing." Id. 

First, waivers are only available for offenses that merit the same lenient

treatment as simple possession. An offense does not "relate[] to a single

offense of simple possession of 30 grams or less of marijuana" if it

contains elements that make it substantially more serious than "simple

possession." For example, possessing marijuana in a prison or near a

school may relate to marijuana possession, but such offenses do not

relate to simple possession because they are inherently more seriousthan

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the basic crime. See Matter of Moncada, 24 I&N Dec. 62 (BIA 2007).

Second, removal proceedings are not a venue for the relitigation of

criminal prosecutions. See Matter of Ruiz-Massieu, 22 I&N Dec. 833,

844 (BIA 1999), and cases cited therein. If the fact of conviction is

sufficient to show that an alien committed actions in addition to (or more

culpable than) a single offense of simple possession of a small amount

of marijuana, then the inquiry is at an end, and section 212(h) relief is

unavailable.

Id. (first emphasis added). 

Here, the issue is whether the BIA's exclusion of a conviction for possession of

drug paraphernalia within a motor vehicle from the waiver statute "is a reasonable and

permissible interpretation of the statute." Olivan-Duenas, 416 F. App'x at 679.

Popescu-Mateffy was found in possession of drug paraphernalia while driving a

tractor-trailer and pleaded guilty to "possession of drug paraphernalia in a motor

vehicle." The possession statute—South Dakota Codified Laws § 22-42A3—penalizes the possession of drug paraphernalia without any reference to the

location of the conduct. But the second statute of conviction—South Dakota Codified

Laws § 32-12-52.3—provides for an enhanced penalty for conduct that occurs within

a vehicle. For a first-time violation of the possession statute, for conduct that occurs

within a vehicle,"the court shall revoke the driver license or driving privilege of the

driver so convicted for a period of ninety days." S.D. Codified Laws § 32-12-52.3. 

The BIA found that this "penalty enhancement" for possessing drug

paraphernalia in a vehicle sufficiently demonstrates conduct that is "substantiallymore

serious than 'simple possession'" and "removes [Popescu-Mateffy] from the purview

of section § 212(h) of the Act." As the government notes, "possession of drug

paraphernalia in a motor vehicle carries an inherent danger to the driver, passengers,

and others on the road." We conclude that "[t]he BIA's interpretation of § 1182(h)'s

waiver for "a single offense of simple possession of . . . marijuana' as not including

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[the possession of drug paraphernalia in a vehicle] is not arbitrary, capricious, or

manifestly contrary to the statute." Olivan-Duenas, 416 F. App'x at 681. 

III. Conclusion

Accordingly, we deny the petition.

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