Interim Decision #3075 

MATTER OF GRIJALVA 

In Deportation Proceedings 

A-38840614 

Decided by Board June 24 1988 

(1) An alien bears the burden of establishing eligibility for a waiver of deportation 

pursuant to section 241(0(2) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1251(0(2) (1982), and of showing that he warrants a favorable exercise of discretion. 

(2) Where the amount of marihuana that an alien has been convicted of possessing 

cannot be ascertained from the alien's conviction record, the alien must come forward with credible testimony or other evidence to meet his burden of proving that 

his conviction related to "30 grams or less of marihuana," and thereby satisfy one 

of 6he prerequisites for section 241(0(2) relief. 

(2) Hearsay evidence is admissible in deportation proceedings unless its use is fundamentally unfair to an alien. 

(4) As provided by the regulations in 8 C.F.R. § 242.14(c) (1988), an immigration 

judge may receive into evidence any relevant and material statement made by an 

alien during a previous investigation. 

(5) The admission into evidence of police reports concerning the circumstances of an 

alien's arrest is especially appropriate in cases involving discretionary relief from 

deportation, where all relevant factors regarding an alien's arrest and conviction 

should be considered. 

CHARGE: 

Order: Act of 1952—Sec. 241(aX11) [8 U.S.C. § 1251(aX11)]—Convicted of marihuana violation 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Severiano A. Roderte, Esquire David Peters 

111 West Monroe, Suite 718 General Attorney 

Phoenix, Arizona 85003 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

The respondent has appealed an immigration judge's decision, 

dated January 22, 1986, in which the immigration judge denied the 

respondent's request for relief pursuant to section 241(0(2) of the 

Immigration and Nationality Act, 8 U.S.C. §1251(f)(2) (1982), and 

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Interim Decision *3075 

ordered that the respondent be deported to Mexico. The appeal will 

be dismissed. 

The respondent is a 38-year-old native and citizen of Mexico. He 

was admitted into the United States for lawful permanent residence on February 12, 1985. The respondent's spouse is also a 

Mexican national who is a lawful permanent resident in this country. The respondent and his wife have been married for 6 years. 

They have a United States citizen daughter and son, whose ages 

are 5 and 3, respectively. The respondent's wife has a 10-year-old 

son from a previous marriage who also resides with the respondent 

and his wife. 

On October 1, 1985, the respondent entered a guilty plea in the 

Superior Court of Maricopa County, Arizona, to the charge of possession of marihuana in violation of sections 13-3401 and 13-3405 

of the Arizona Revised Statutes, a class 6 undesignated felony. 1 

was convicted on October 29, 1985, and he was sen- The respondent 

tenced to 3 years' probation for the offense. 2 

On October 29, 1985, the Immigration and Naturalization Service 

issued an Order to Show Cause, Notice of Hearing, and Warrant 

for Arrest of Alien (Form I-221S) against the respondent, charging 

that he was deportable pursuant to section. 241(a)(11) of the Act as 

an alien who had been convicted of a violation of a law relating to 

the possession of marijuana. 3At his deportation hearing, the respondent admitted that the allegations concerning him in the 

Order to Show Cause were true, denied the charge of deportability 

I Although neither of the parties has submitted a copy of the statute under which 

the respondent was convicted, we take administrative notice of section 13-3405 of 

the Arizona Revised Statutes, which provides in pertinent part: 

A. A person shall not knowingly: 

1. Possess or use marijuana 

. . . 

B. A person who violates: 

1. Subsection A, paragraph 1 involving an amount of marijuana not possessed for 

sale having a weight at the time of seizure of less than one pound is guilty of a 

class 6 felony 

The record reflects that the sentencing court recommended that the respondent 

not be deported. The provision in the Act concerning the judicial recommendation 

against deportation, however, specifically states that it shall not apply to persons, 

such as the respondent, who are charged with deportability pursuant to section 

241(aX11) of the Act, 8 U.S.C. § 1251(aX11) (1982). See section 241(b) of the Act. 

3 Section 241(aXll) of the Act was amended by the Anti-Drug Abuse Act of 1986, 

Pub. L. No. 99-570, 100 Stet. 3207. It now provides in pertinent part that any alien 

shall be deported who "has been convicted of a violation of . . . any law . . . of a 

State . . . relating to a controlled substance (as defined in section 101 of the Controlled Substances Act (21 U.S.C. 802))." 

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Interim Decision # 3075 

contained in the Order to Show Cause, and submitted an application for relief from deportation pursuant to section 241(f)(2) of the 

Act. 

Section 241(1)(2) of the Act provides: 

The provisions of subsection (aX11) as relate to a single offense of simple possession of 30 grams or less of marihuana may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in subsection (aXl9)) 

who— 

(A) is the spouse or child of a citizen of the United States or of an alien lawfully 

admitted for permanent residence, or 

(B) has a child who is a citizen of the United States or an alien lawfully admitted for permanent residence. 

if it is established to the satisfaction of the Attorney General that the alien's deportation would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, or child of such alien and that such waiver would not 

be contrary to the national welfare, safety, or security of the United States. 

This discretionary waiver was added to the Act in 1981 for hnmanitarian purposes to ameliorate the hardship that an alien's deportation would cause to his United States citizen or lawful permanent 

resident relatives when the alien had been convicted of one simple 

possession of marihuana offense. See Section 8, Immigration and 

Nationality Act Amendments of 1981, Pub. L. No. 97-116, 95 Stat. 

1161; see also H.R. Rep. No. 264, 97th Cong., 1st Sess. 20-21, reprinted in 1981 U.S. Code Cong. & Ad. News 2589-90. 

Both the respondent and his wife testified in support of the respondent's application for relief from deportation. The respondent 

also submitted into evidence the transcript from his criminal proceedings in which he had entered a guilty plea to the charge of possession of marihuana. The immigration judge accepted into evidence, over the objection of the respondent, the police reports 

which described the respondent's arrest and which summarized the 

evidence that was seized at the respondent's home. At the conclusion of the deportation hearing, the immigration judge, as noted 

above, found the respondent to be deportable as charged and 

denied his section 241(0(2) application. 

On appeal, the respondent contends that he admitted in his 

criminal proceedings only that he had been in possession of a "cigarette and a half' of marihuana, that the immigration judge's finding that the respondent possessed more than 30 grams of marihuana was incorrect, and that he is eligible for a section 241(0(2) 

waiver of deportability. The respondent also contends on appeal 

that the immigration judge erred in admitting into evidence the 

police reports concerning the respondent, because those reports 

were outside the record of his criminal proceedings and because he 
Interim Decision #3075 

did not have the opportunity to cross-examine the persons who prepared the reports. 

The Service bears the burden of establishing an alien's deportability by means of evidence that is "clear, unequivocal, and convincing." Woodby v. INS, 385 U.S. 276, 286 (1966); 8 C.F.R. 

§ 242.14(a) (1988). The Service has met that burden in this case because the respondent conceded that all of the allegations concerning him in the Order to Show Cause, including the allegation that 

he had been convicted of possession of marihuana in violation of 

Arizona law, were true. We therefore find that the Service has sustained_ the charge of section 241(a)(11) deportability that it entered 

against the respondent. 4 

Aliens in deportation proceedings have the burden of proving 

statutory eligibility for relief from deportation and of showing that 

they are entitled to a favorable exercise of discretion. See 2 C. 

Gordon & H. Rosenfield, Immigration Law and Procedure § 7.1b(4), 

at 7-11 (rev. ed. 1987). The respondent here has the burden of 

showing that he is eligible for section 2410(2) relief and that he 

warrants that relief as a matter of discretion. See 8 C.F.R. 

§§ 242.17(d), (e) (1988); see also Reid v. INS, 756 F.2d 7, 10 (3d Cir. 

1985); Matter of Connally, 19 I&N Dec. 156 at 160 (BIA 19S4). 

The respondent submitted into evidence the transcript from his 

criminal proceedings to support his contention that he was convicted of a single offense of possession of less than 30 grams of marihuana. The transcript reflects that the sentencing judge informed 

the respondent of his rights and then told the respondent that the 

judge "need[ed] to establish a factual basis to support [the respondent's] guilty plea." The following exchange then took place between 

the sentencing judge and the respondent (defendant): 

THE COURT: So is it true that on or about September 10th of 1985, in Maricopa 

County you did knowingly possess marijuana, a usable amount, which in fact was 

marijuana? 

THE DEFENDANT: Yes. Yes. 

THE COURT: How did you possess it? 

THE DEFENDANT: In a bag. 

THE COURT: All right. Was it your bag? 

THE DEFENDANT: It was in a paper bag. 

THE COURT: Was it your paper bag? 

4 Mush of the confusion in this case has resulted from a failure to specify the parties' respective burdens of proof. The Service does have the burden of proving the 

alien's deportability. But after it has met that burden, the respondent, as will be 

discussed infra, bears the burden of establishing eligibility for any relief from deportation. 

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Interim Decision #3075 

THE DEFENDANT: What? Mine? 

THE COURT: Yes. Was it your paper bag? 

THE DEFENDANT: It was a paper bag. 

THE COURT: The marijuana, was it your marijuana? 

THE DEFENDANT: No. 

THE COURT: Whose was it? 

THE DEFENDANT: It was a friend of mines [sic]. I had it. 

THE COURT: It wasn't yours? 

THE DEFENDANT: No. 

THE COURT: All right. 

[DEFENDANTS COUNSEL]: As I understand it, Your Honor, there was also an 

amount in his pocket. 

THE COURT: Did you have some marijuana in your pocket? 

THE DEFENDANT: Yes. I had a little bit in my pocket. 

THE COURT: How much was there? 

THE DEFENDANT: A little bit 

THE COURT: Was it a usable amount? 

THE DEFENDANT: Yes. It was a little bit. It was for a cigarette or two. Cigarette 

and a half. 

THE COURT: All right. Do either counsel have any questions regarding factual 

basis or voluntariness of the plea? 

At the close of the criminal proceedings the judge stated: 

Based on the record the court finds that the defendant has knowingly, inteligently 

[sic], and voluntarily entered a negotiated guilty plea to possession of marijuana, 

a class 6 felony, open ended offense. I further find that there is a factual basis to 

sustain the guilty plea. I will accept the guilty plea. 

The respondent maintains that only the transcript from his 

criminal proceedings and his conviction record should be considered in determining the amount of marihuana that he was convicted of possessing. However, based upon a review of the transcript 

from the criminal proceedings, it is apparent that the specific 

amount of marihuana which the respondent possessed was not at 

issue in his criminal proceedings. The sentencing judge explained 

to the respondent that the judge wished to question the respondent 

for the purpose of establishing a "factual basis" for the respondent's guilty plea. The sentencing judge sought only a concession 

from the respondent that he had in fact possessed marihuana, 

without regard to the amount he possessed. 5The respondent's con5Although in the course of the colloquy between the sentencing judge and the 

respondent, the respondent did state that he had possessed a marihuana "cigarette 

and a half," there is nothing in the record which establishes that the respondent's 

conviction related to that exact amount. 
Interim Decision #3075 

viction record, a copy of which is included in the record, states that 

the respondent "is guilty of the crime of possession of marijuana," 

but does not specify the amount that the respondent had been 

found guilty of possessirig. 6The precise amount of marihuana that 

the respondent was convicted of possessing also cannot be determined from the criminal statute under which he was convicted.? 

Accordingly, in cases such as the instant case, where the amount 

of niarihuana that an alien has been convicted of possessing cannot 

be readily determined from the conviction record, the alien who 

seeks section 241(0(2) relief must come forward with credible and 

convincing testimony, or other evidence independent of his conviction record, to meet his burden of showing that his conviction involved "30 grams or less of marihuana." 8 The respondent here 

6The respondent concedes in the brief in support of his appeal that the documents relating to his conviction do not specify the amount of marihuana that he 

was convicted of possessing: "[The respondent] merely was found to be guilty of posococion of marijuana. There was no finding of any specific amount of grams by the 

Marimpa County Superior Court." 

I See note 1, supra. Section 13-3405 of the Arizona Revised Statutes specifies only 

that a person who possesses "less than one pound' of marihuana is "guilty of a class 

6 felony." Although the respondent urges on appeal that only the transcript from 

his criminal proceedings and his conviction record should be considered in determining the amount of marihuana that his conviction involved, the respondent has not 

met his burden of proving that his conviction was for "30 grams or less of marihuana" by relying on those documents alone. 

Moreover, the respondent contends that the immigration judge's finding that the 

respondent possessed more than 30 grams of marihuana is not supported by the 

record of the respondent's criminal proceedings. This argument misconstrues the 

burden of proof requirement with respect to a section 241(f)(2) application. The Service does not have the burden of proving that the respondent's conviction was for 

more than 30 grams of marihuana to establish the respondent's deportability; 

rather, the respondent has the burden of proving that his conviction involved "30 

grams or less" of marihuana to satisfy one of the statutory requirements for a section 241(0(2) waiver of deportability. 

° Because it is a relatively new addition to the Act, there have not been many 

reported decisions which discuss the section 241(0(2) discretionary waiver or describe how the eligibility requirements for the waiver can be met. In Reid v. INS, 

supra, however, the United States Court of Appeals for the Third Circuit held that 

the Board did not abuse its discretion in refusing to reopen the deportation proceedings of an alien who requested section 241(0(2) relief. The alien in Reid had entered 

a guilty plea to the charge of possession of marihuana. Years later the alien submitted an affidavit along with a motion to reopen in which he stated that his possession 

conviction had been for "approximately one ounce of marijuana." Reid v. INS, 

supra, at 10. The Court agreed with the Board, however, that the alien had not 

shown a prima fade case of eligibility for section 241(1)(2) relief, because the laboratory report that was issued at the time of the alien's conviction stated that 626.1 

grams of marihuana had been submitted for testing in connection with the alien's 

criminal case. Id. 

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Interim Decision #3075 

gave the following testimony at his deportation hearing in support 

of his section 241(0(2) application and in support of his contention 

that his conviction for possession was for an amount less than 30 

grams of marihuana. The respondent testified that he was arrested 

for possession of marihuana several days after a friend of his left 

some marihuana in the respondent's home. He further claimed 

that he was not aware that the friend had left marihuana in his 

home until the respondent was arrested. 

The respondent explained that he had met a man, whom he ultimately identified as Jesus Torrez, when the respondent was in the 

check-out line of a supermarket located near his home in Arizona. 

He stated that his wife was with him at the supermarket, but that 

he was alone in the check-out line when he met Jesus Torrez. The 

respondent claimed that Torrez told him that he was pleased to 

meet a Mexican and that Torrez added: "I have not been able to 

meet any Mexicans here." 

The respondent originally testified that after he met Torrez at 

the supermarket, Torrez came with him to the respondent's home; 

but he later stated that Torrez asked the respondent where he 

lived while they were talking at the supermarket, and that Torrez 

then followed the respondent home. The respondent noted that 

Torrez drove a "big blue car with California license plates" and 

that the car "looked like a Cadillac." He also stated that his wife 

did not know that Torrez had followed him to the house. According 

to the respondent, Torrez then came into the respondent's house, 

apparently with his consent. 

When questioned by the Service attorney as to whether the respondent often let strangers into his house, the respondent replied 

that he did not let strangers into his home but that Torrez had 

been "very friendly." The respondent added that other than his innmediate family he did not let anyone into the house. 

The respondent testified further that Torrez gave him a small 

packet and that Torrez also left a larger bag in the respondent's 

house.° He said that Torrez placed the bag on the shelf in the bedroom closet so that the respondent's children could not reach the 

bag. The respondent testified, however, that he was not aware of 

the contents of the bag until after the police had arrested him and 

told him that the bag contained marihuana. According to the respondent, Torrez set the bag down and said he was going to leave it 

there "for a while," but he did not return for it. Three days later 

the police arrived and arrested the respondent. 

9 The respondent stated that the dimensions of the bag were 6-8 inches in length, 

width, and height. 

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Interim Decision #3075 

The respondent stated that he smoked a cigarette consisting of 

the substance that was in the small packet that Torrez had given 

to him. He claimed that he "took a puff' from the cigarette and 

when he realized that "it wasn't a [tobacco] cigarette," he no longer 

wished to smoke it. The respondent said that he had a sore throat 

for a few days from the substance that he smoked. He stated that 

he had never seen marihuana before and that he did not realize 

that the substance was marihuana even after he had taken a puff 

from the cigarette. The respondent also claimed that he did not 

bother to look into the larger bag in the closet after he tasted the 

cigarette. Furthermore, he asserted that after he had taken "a 

puff' from the cigarette, he placed the remainder of the cigarette 

in his pocket. The respondent stated that when the police came and 

executed their search warrant, they found "enough [marihuana] for 

a cigarette" in his pocket. The police also found the larger bag 

when they executed the search warrant. When questioned at his 

deportation hearing as to whether the police had found scales and 

boggles during their march, the respondent claimed that those 

items were in the larger bag and that he had been entirely unaware of the contents of that bag. 

The respondent's wife gave the following testimony concerning 

the circumstances of her husband's arrest. She stated that the day 

of the arrest was a Tuesday and that she had been away visiting 

relatives in Tucson during the previous Friday through Monday. 

She did testify, however, that she remembered going to the local 

supermarket with the respondent "a few days before the arrest" 

She stated that the children were also with her and the respondent 

when they went shopping on that occasion_ 

The respondent's wife testified further that she and the respondent went home after they had been at the supermarket. She stated 

that she did not remember anyone coming into the house and 

speaking with the respondent immediately after they returned 

from the supermarket. She also claimed that she did not remember 

seeing a bag in the bedroom closet. She further stated that she did 

not see a man named Jesus Torrez come to the house, that the respondent never told her about Jesus Torrez coming to the house, 

and that the respondent never told her about a man from the local 

supermarket coming to the house. 

Considering the testimony given by the respondent and his wife, 

we find that they have not presented a plausible account of the 

events that led to the respondent's arrest and conviction. The respondent claimed that when he tasted the cigarette that Torrez 

had given to him, he coughed and had a sore throat for several 

days. Presumably, a person who had that kind of a reaction to the 

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Interim Decision #3075 

substance would dispose of it. The respondent testified, however, 

that he still had the packet containing marihuana in his pocket 

when the police arrived. The respondent's testimony that he allowed someone whom lie had recently met to place a bag in his 

bedroom closet in such a manner that it would be out of the reach 

of his children, but that he did not subsequently look into the bag, 

is also difficult to believe. 

In addition, the testimony of the respondent's wife did not corroborate, but instead cast further doubt on, the respondent's already specious claim The respondent's wife stated that, although 

she was with her husband at the supermarket and went home with 

him after they had been at the supermarket, she did not see a man 

named Jesus Torrez enter the house, and her husband did not tell 

her about this man who came into their home. The respondent, 

however, described. Torrez as a friendly man who said he was 

happy to meet a Mexican national. The respondent claimed to have 

liked Torrez so much that he apparently made an exception to his 

practice of only allowing family members into the house. Despite 

the unusual visit from Torrez, which occurred shortly after the 

family had returned from the supermarket, the respondent's wife 

claimed to have no knowledge of the visit by Torres. Furthermore, 

the respondent's wife's testimony that the arrest occurred on a 

Tuesday and that she had been in Tucson visiting relatives during 

the preceding Friday through Monday (4 days and 1 day, respectively, before the day of the arrest) conflicts with the respondent's 

testimony that he met Torrez while the respondent was shopping 

with his wife, that Torrez left the marihuana in the respondent's 

house and said that he would return for it, and that 3 days later 

the police arrived at the respondent's home. If the testimony of the 

respondent's wife is accepted as true, then she would actually have 

been in Tucson, rather than shopping with her husband at the 

local supermarket, when Torrez allegedly left the marihuana at 

the respondent's house 3 days before the police arrived. 

Moreover, when compared with the information that is included 

in the police reports, the testimony that the respondent gave in 

support of his section 241(f)(2) application appears to be false. The 

respondent contends on appeal that the immigration judge erred by 

admitting the police reports into evidence. The respondent argues 

that the police reports should not have been admitted into evidence 

because those reports were outside the record of his criminal proceeding's and because he did not have the opportunity to cross-ex 

amine the persons who prepared the reports. Although the police 

reports here are hearsay in nature, this does not mean that they 

are inadmissible in the respondent's deportation proceedings. As 
Interim Decision #3075 

we stated in Matter of Velasquez, 19 I&N Dec. 377 at 380 (BIA 

1986), "documentary evidence in deportation proceedings need not 

comport with strict judicial rules of evidence; rather, in order to be 

admissible, such evidence need only be probative and its use fundamentally fair, so as not to deprive an alien of due process of law." 

See also United States v. Herrera-Medina, 609 F.2d 376, 379 (9th 

Or. 1979). The police reports in the instant case are probative of 

the circumstances surrounding the respondent's arrest and conviction for possession of marihuana. 

Other than objecting to the hearsay nature of the police reports 

and stating that they were not a part of his conviction record, the 

respondent has not explained how the immigration judge's consideration of the police reports was "fundamentally unfair." The respondent does not claim, for example, that he made statements involuntarily to the officers who arrested him, or that the police officers acted egregiously in seizing evidence at his house. See INS v. 

Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); Matter of Toro, 17 

I&N Dec. 340, 343 (BIA 1980). Furthermore, with respect to the admissibility of prior statements, the regulations specifically provide: 

The special inquiry officer may receive in evidence any oral or written statement 

which is material and relevant to any issue in the case previously made by the 

respondent or any other person during any investigation, examination, hearing, or 

trial. 8 C.F.R. § 242.14(c) (1988) (emphasis added); see also Matter of Velasquez, 

supra, at 380. Thus, any prior statements that the respondent made during a previous investigation that are relevant to his eligibility for section 241(0(2) relief are 

admissible in his deportation proceedings. 

In addition, the admission into the record of the information contained in the police reports is especially appropriate in cases involving discretionary relief from deportation, where all relevant 

factors concerning an arrest and conviction should be considered to 

determine whether an alien warrants a favorable exercise of discretion. Based on all of the foregoing, we conclude that the immigration judge did not err in admitting the police reports into evidence, 

and we also will consider the information contained in those reports on appeal. 

The certified copy of the police reports in the record includes a 

list of items that were seized at the respondent's residence the day 

that the search warrant was executed." Among the items seized 

was a clear plastic haggle containing a vegetable substance that 

was taken from the respondent's left front pocket. This item was 

sent to the laboratory at the Arizona Department of Public Safety 

" According to the police reports, the search warrant was executed on Tuesday, 

September 10, 1985. The reports that were prepared by the officers who executed 

the search warrant were also written on September 10, 1985. 

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Interim Decision #3075 

and was identified as 1.93 grams of marihuana. The police officers 

also seized a brown paper bag, containing three clear plastic baggies of vegetable substance, from the top shelf of the closet in the 

respondent's master bedroom. The laboratory determined that the 

bag contained a total of 580 grams of rnarihuana. 11The police officers also found both a scale and a package of wrapping papers 

inside a shoebox on the top shelf of the closet in the respondent's 

master bedroom. Another clear plastic baggie, which contained 

what was subsequently determined to be 1.59 grams of marihuana, 

was found in the bottom drawer of a cabinet located in the closet of 

a separate bedroom. 

One of the police reports included in the record was prepared by 

Officer Melendez, who states that he questioned the respondent 

after informing him of his Miranda rights in. Spanish. According to 

Officer Melendez, the respondent told him at the time of the arrest 

that the marihuana which had been found in the paper bag did not 

belong to the respondent, but belonged to "Francisco Torres." Officer Melendez's report also indicates that the respondent clahned 

that Torres, whom he and his wife met when they were coming out 

of the local supermarket, had paid him $40 for holding the marihuana while Torres was in California. Officer Melendez notes fnrther that the respondent informed him that Torres drove a large 

blue car with California license plates and that Torres approached 

the respondent and his wife and told them how happy he was to 

meet people from Mexico. Officer Melendez states in his report 

that he asked the respondent where he obtained the marihuana 

that was found in his pocket, and the respondent replied that a 

friend of his, whom he refused to identify, had left it in his living 

room. The respondent also informed Officer Melendez at this time 

that he did occasionally smoke marihuana. 

The testimony that the respondent gave at his deportation hearing concerning the circumstances surrounding his arrest and conviction contradicts the statements, as reported by Officer Melendez, 

that the respondent made at the time of his arrest. The respondent 

claimed at his deportation hearing that he did not smoke raarihuana and that he became ill the one time that he tried it. He stated 

to Officer Melendez, however, that he occasionally smoked marihuana. The respondent also claimed at his hearing that he did not 

know that "Jesus Torrez" had left marihuana at his home until the 

police arrived. Yet, he told Officer Melendez that "Francisco 

Torres" had paid the respondent to hold Torres' marihuana. The 

respondent asserted before the immigration judge that his wife did 

'I See note 8, supru. 

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Interim Decision #3075 

not know about Torrez or his visit; but when he was arrested, the 

respondent stated that Torres had introduced himself to both the 

respondent and his wife. 

The respondent's testimony concerning the evidence that was 

seized at his home also contradicts the police report regarding the 

evidence that was found there. The respondent claimed that the officers found only a small packet of marihuana in his pocket and a 

larger bag containing marihuana in the bedroom closet- The police 

report, however, indicates that a separate packet of marihuana was 

found in another of the respondent's bedrooms. The respondent 

also testified that the scales and haggles which the police found 

during their search came from the paper bag containing the marihuana and that he was not aware of anything that was inside that 

bag. According to the police report, though, a scale and a package 

of wrapping papers were found in a separate shoebox that was located on the same shelf where the brown paper bag containing 

marihuana was found. 

The testimony that the respondent and his wife gave concerning 

the circumstances of his arrest and conviction was not persuasive. 

The foregoing comparison between the testimony that the respondent gave at his hearing and the statements that he made at the 

time of his arrest also casts doubt on the respondent's explanation 

of the circumstances surrounding his arrest and conviction. Therefore, since the respondent's conviction record does not establish the 

amount of marihuana that the respondent was convicted of possessing, and because the respondent has not come forward with convincing testimony or other evidence to demonstrate that his conviction related to 30 grams or less of marihuana, we conclude that the 

respondent has not met his burden of proving that he was convicted of a "single offense of simple possession of 30 grams or less of 

marihuana." 

In his decision, the immigration judge found that the respondent 

had established all of the elements for section 241(0(2) relief other 

than the "30 grams or less" element. We agree with the immigration judge that the respondent did not meet his burden with respect to the "30 grams or less" requirement but express no opinion 

concerning whether the respondent has satisfied the remaining requirements for section 241(0(2) eligibility. Accordingly, we find that 

the respondent has not demonstrated statutory eligibility for a section 241(0(2) waiver of deportability. 

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Interim Decision #3075 

Because we conclude that the respondent has not demonstrated 

eligibility for section 241(0(2) relief, we need not address the issue 

of whether he merits a favorable exercise of discretion. The respondent's appeal will be dismissed. 

ORDER: The appeal is dismissed.