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310 

Matter of Jorge MORADEL, Respondent 

Decided June 23, 2021

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) An applicant for adjustment of status with Special Immigrant Juvenile status may, in

conjunction with a waiver under section 245(h)(2)(B) of the Immigration and

Nationality Act, 8 U.S.C. § 1255(h)(2)(B) (2018), seek to waive his or her

inadmissibility under section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) (2018), based on a single offense of simple possession of

30 grams or less of marijuana.

(2) The “simple possession” exception at section 245(h)(2)(B) calls for

a circumstance-specific inquiry into the nature of the conduct surrounding an applicant’s 

simple possession offense.

FOR RESPONDENT: Anna K. Byers, Esquire, Newark, New Jersey 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Patricia M. Medeiros, 

Assistant Chief Counsel 

BEFORE: Board Panel: GREER and O’CONNOR, Appellate Immigration Judges; 

LIEBMANN, Temporary Appellate Immigration Judge. 

O’CONNOR, Appellate Immigration Judge: 

 In a decision dated November 18, 2019, an Immigration Judge found that 

the respondent was ineligible for a waiver of inadmissibility under section 

245(h)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1255(h)(2)(B) (2018), and thus ineligible for adjustment of status under

section 245(a) of the Act. The respondent has appealed from this decision.

The appeal will be sustained, and the record will be remanded for further

proceedings.1

I. FACTUAL BACKGROUND

 The respondent is a native and citizen of Honduras, who was born in 1995 

and entered the United States without being admitted or paroled when he was 

approximately 4 years old. In 2013, he was placed in removal proceedings 

1

 We acknowledge with appreciation the brief submitted on behalf of Public Counsel, 

Catholic Legal Immigration Network, Inc., and Children’s Rights as amici curiae. 
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311 

and conceded his removability. He subsequently filed a petition to be 

classified as a Special Immigrant Juvenile, which was approved. In 

December 2017, the respondent was convicted of possession of 50 grams or 

less of marijuana in violation of section 2C:35-10(a)(4) of the New Jersey 

Statutes Annotated. Before the Immigration Judge, the respondent conceded 

that his conviction rendered him inadmissible under section 

212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2018), as an 

alien convicted of an offense relating to a controlled substance. 

 The respondent sought relief from removal in the form of adjustment of 

status under section 245(a) of the Act. However, the Immigration Judge 

found that his inadmissibility under section 212(a)(2)(A)(i)(II) of the Act 

rendered him ineligible for this relief because it prevented him from 

establishing that he was “admissible to the United States” pursuant to section 

245(a)(2) of the Act. The respondent asked the Immigration Judge to grant 

him a waiver of inadmissibility under section 245(h)(2)(B) of the Act. That 

section applies to applicants for adjustment of status with Special Immigrant 

Juvenile status, and provides that 

the Attorney General may waive other paragraphs of section 212(a) (other than 

paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related

to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), 

(3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes, 

family unity, or when it is otherwise in the public interest. 

Section 245(h)(2)(B) of the Act (emphasis added); see also 8 C.F.R. 

§ 1245.1(e)(3) (2020). 

 The respondent argued that his inadmissibility under section 

212(a)(2)(A)(i)(II) can be waived under section 245(h)(2)(B) of the Act 

because section 2C:35-10(a)(4) reaches offenses involving the simple 

possession of 30 grams or less than of marijuana. However, the Immigration 

Judge disagreed, concluding that the respondent was ineligible for a section 

245(h)(2)(B) waiver because the “simple possession” exception in that 

provision only waives an applicant’s inadmissibility under section 

212(a)(2)(C) of the Act, which applies to aliens reasonably believed to have 

engaged in illicit trafficking. The respondent challenges the Immigration 

Judge’s interpretation on appeal. We review de novo the scope of the “simple 

possession” exception in section 245(h)(2)(B) of the Act and whether that 

provision can waive the respondent’s inadmissibility under section 

212(a)(2)(A)(i)(II) of the Act. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020). 
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II. ANALYSIS 

A. Scope of 245(h)(2)(B) Waiver 

 We recognize that the canon of statutory construction known as the “rule 

of the last antecedent” lends some support to the Immigration Judge’s 

conclusion. Lockhart v. United States, 577 U.S. 347, 351 (2016) (citation 

omitted). Under that rule, “a limiting clause or phrase . . . should ordinarily 

be read as modifying only the noun or phrase that it immediately follows.” 

Id. (citation omitted) (stating that this “rule reflects the basic intuition that 

when a modifier appears at the end of a list, it is easier to apply that modifier 

only to the item directly before it”); see also Barnhart v. Thomas, 540 U.S. 

20, 26 (2003). 

 However, the last-antecedent rule is “not an absolute and can assuredly 

be overcome by other indicia of meaning.” Paroline v. United States, 572 

U.S. 434, 447 (2014) (citation omitted). In this regard, the structure of 

section 245(h)(2)(B) indicates that the last-antecedent rule is insufficient for 

understanding the scope of the “simple possession” exception. See Lockhart, 

577 U.S. at 355 (acknowledging that “structural or contextual evidence may 

‘rebut the last antecedent inference’” (citation omitted)). Section 

245(h)(2)(B) contains a parenthetical clause listing provisions under sections 

212(a)(2) and (3), and the “simple possession” exception is integrated into 

this parenthetical directly after the list of provisions under section 212(a)(2) 

but before the list of provisions under section 212(a)(3). This structure 

suggests that the “simple possession” exception modifies all of the provisions 

listed under section 212(a)(2) but does not apply to the list of provisions 

under section 212(a)(3). See Jama v. ICE, 543 U.S. 335, 344 n.4 (2005) 

(explaining that the last-antecedent rule would not apply where the 

“modifying clause appeared . . . at the end of a single, integrated list”).2

 

 The plain language of section 245(h)(2)(B) of the Act also persuades us 

that the last-antecedent rule is insufficient for understanding the scope of the 

“simple possession” exception. See Pereira v. Sessions, 138 S. Ct. 2105, 

2117 (2018) (relying on “plain language and statutory context” in 

interpreting a provision of the Act). We find it significant that section 

245(h)(2)(B) provides that we may “waive other paragraphs of section

212(a) (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of 

such paragraph as related to a single offense of simple possession of 

30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)).” 

 

2

 By contrast, the last-antecedent rule would be applicable if the “simple possession” 

exception appeared with section 212(a)(2)(C) in a distinct clause that “ends with a period, 

strongly suggesting that [the clause] may be understood completely without reading any 

further.” Jama, 543 U.S. at 344. 
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(Emphases added.) The terms “section” and “paragraph” have distinct, 

technical meanings in Federal statutes. Congressional drafters are required 

to break Federal statutory sections into subsections, paragraphs, 

subparagraphs, clauses, and subclauses and mark each subdivision with 

a specific type of symbol. Office of Legislative Counsel, U.S. House of 

Representatives, House Legislative Counsel’s Manual on Drafting Style, 

HLC No. 104-1, at 23–24 (1995); see also Tima v. Att’y Gen., 903 F.3d 272, 

276 (3d Cir. 2018). As relevant here, congressional drafters mark 

subsections with lowercase letters, paragraphs with Arabic numerals, and 

subparagraphs with capital letters. Tima, 903 F.3d at 276 (citing HLC No. 

104-1, at 24). So when the “simple possession” exception uses the phrase 

“such paragraph,” it is clearly referring to paragraph 212(a)(2) in its 

entirety—not just to subparagraph 212(a)(2)(C) of the Act, its nearest 

antecedent. 

 Other canons of statutory construction support this conclusion. “When 

several words are followed by a clause which is applicable as much to the 

first and other words as to the last, the natural construction of the language 

demands that the clause be read as applicable to all.” Paroline, 572 U.S. 

at 447 (citation omitted). The “simple possession” exception is just as 

applicable to section 212(a)(2)(A)(i)(II) as it is to sections 212(a)(2)(B)3

 and 

(C) of the Act, and thus the natural reading of that exception is that it applies 

with equal force to sections 212(a)(2)(A), (B), and (C) of the Act. 

 Furthermore, courts generally do not apply the “rule of the last 

antecedent” if doing so “would require accepting ‘unlikely premises.’” Id.

(citation omitted); see also Lockhart, 577 U.S. at 355. Although the 

Immigration Judge found that the “simple possession” exception only waives 

inadmissibility under section 212(a)(2)(C) for suspected traffickers, illicit 

trafficking has long been viewed as a significantly more serious crime than 

simple possession because trafficking requires distribution, exchange, or 

some form of transfer of controlled substances from one person to another. 

See, e.g., Lopez v. Gonzales, 549 U.S. 47, 53 (2006) (“[O]rdinarily 

‘trafficking’ means some sort of commercial dealing.”); Urena-Ramirez 

v. Ashcroft, 341 F.3d 51, 57 (1st Cir. 2003) (defining “‘illicit trafficking’ as 

illegally ‘trading, selling or dealing’ in specified goods” (citation omitted)). 

And simple possession is by definition not illicit trafficking, since simple 

possession does not involve any intent to transfer or exchange. See 

Carachuri-Rosendo v. Holder, 560 U.S. 563, 574 (2010) (explaining that 

a “petty simple possession offense is not typically thought of as . . . ‘illicit 

trafficking’” since “commercial dealing” “is no[t] [an] element of simple 

 

3

 Section 212(a)(2)(B) of the Act renders aliens inadmissible if they are convicted of two 

or more offenses with an aggregate sentence to confinement of 5 years or more, including 

convictions for offenses relating to simple possession. 
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possession” (citations omitted)). Thus, under the Immigration Judge’s 

interpretation, an individual with Special Immigrant Juvenile status with 

a single conviction for simple possession of 30 grams or less of marijuana 

would rarely, if ever, qualify for a waiver under section 245(h)(2)(B), while 

a person with a more serious trafficking conviction would. We conclude that 

this “unlikely premise” rebuts the “the last antecedent inference.” Lockhart, 

577 U.S. at 355–56 (citation omitted).4

 Because simple possession does not qualify as trafficking, the 

last-antecedent rule would also effectively read the “simple possession” 

exception out of section 245(h)(2)(B) of the Act. It is “one of the most basic 

interpretive canons . . . that [a] statute should be construed so that effect is 

given to all its provisions, so that no part will be inoperative or superfluous, 

void or insignificant.” Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 824 

(2018) (alteration in original) (citation omitted). The rule against surplusage 

lends further support to our conclusion that the last-antecedent rule is 

inapplicable and the “simple possession” exception in section 245(h)(2)(B) 

 

4

 The legislative history of similar provisions underscores our conclusion that this is an 

“unlikely premise” because this history indicates that Congress intended section 

245(h)(2)(B) to waive the simple possession of marijuana, and it did not intend the waiver 

to apply to trafficking offenses at all. In 1981, Congress first added provisions to the Act 

waiving an alien’s excludability and deportability—now inadmissibility and 

deportability—for “a single offense of simple possession of 30 grams or less of 

marihuana.” Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, 

§§ 2(c)(2), 4(3), 8, 95 Stat. 1611, 1611–12, 1616 (codified at former sections 101(f), 212(h), 

and 241(f)(2) of the Act, 8 U.S.C. §§ 1101(f), 1182(h), and 1251(f)(2) (1982)). During 

passage, the House issued a report explicitly stating that one of these provisions—

amending the definition of good moral character under former section 101(f)—was 

intended to provide greater flexibility in cases involving “minor drug offenses (not 

involving trafficking in narcotics).” H.R. Rep. No. 96-1301, at 25 (1980) (emphasis added); 

see also id. at 51. The Senate agreed, but it narrowed the exception to a single offense of 

simple possession of 30 grams or less of marijuana, and the amended language in this and 

other provisions was adopted without further discussion. See 127 Cong. Rec. 23,776 

(1981) (statement of Rep. McClory) (stating that the amended statutory language is “now 

limited explicitly to simple possession of marihuana” and excludes “trafficking”); see also 

id. at 32,008 (statement of Sen. Simpson). Although section 245(h)(2)(B) has limited 

legislative history, given that Congress intended other, similarly-worded provisions to 

reach only simple possession, not trafficking offenses, it is unlikely that Congress intended 

the “simple possession” exception in section 245(h)(2)(B) to apply only to trafficking 

offenses under section 212(a)(2)(C) but not to the simple possession of marijuana under 

212(a)(2)(A)(i)(II). See Matter of Moncada, 24 I&N Dec. 62, 65–67 (BIA 2007) 

(concluding, based on the same legislative history, that the similarly-worded “personal use” 

exception under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), was 

intended to cover “the simple possession of small amounts of marijuana”). 
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applies to all of the provisions listed under section 212(a)(2), including the 

ground of inadmissibility at section 212(a)(2)(A)(i)(II) of the Act. 

 We additionally observe that the “simple possession” exception and 

a similar “personal use” exception appear in numerous places throughout the 

Act. Compare sections 101(f)(3), 210(c)(2)(B)(ii)(III), 212(h), 

244(c)(2)(A)(iii)(II), 245(h)(2)(B), 245A(d)(2)(B)(ii)(II) of the Act, 8 U.S.C. 

§§ 1101(f)(3), 1160(c)(2)(B)(ii)(III), 1182(h), 1254a(c)(2)(A)(iii)(II), 

1255(h)(2)(B), 1255a(d)(2)(B)(ii)(II) (2018) (“simple possession”), with 

section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2018) 

(“personal use”).5

 The broad phrasing of these exceptions also supports our 

conclusion that Congress intended the “simple possession” exception in 

section 245(h)(2)(B) to be applied broadly. But see section 212(h) of the Act 

(waiving sections 212(a)(2)(A)(i)(II) and (B) but excluding section 

212(a)(2)(C) from the waiver). We therefore hold that an applicant for 

adjustment of status with Special Immigrant Juvenile status may, in 

conjunction with a waiver under section 245(h)(2)(B) of the Act, seek to 

waive his or her inadmissibility under section 212(a)(2)(A)(i)(II) of the Act 

based on a single offense of simple possession of 30 grams or less of 

marijuana.6

B. “Simple Possession” Exception is Circumstance-Specific 

 Having determined that section 245(h)(2)(B) can waive an applicant’s 

inadmissibility under section 212(a)(2)(A)(i)(II) of the Act arising from 

a single offense of simple possession of 30 grams or less of marijuana, we 

must now address how to determine whether an applicant’s offense falls 

within the “simple possession” exception. The respondent argues that we 

should determine whether an offense falls within this exception using the 

categorical approach. The Immigration Judge found that the 

circumstance-specific approach—“that is, an inquiry into the nature of the 

conduct that caused [the respondent] to become inadmissible”—was 

appropriate, but she did not apply this approach below. Matter of Martinez 

Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) (citing Nijhawan v. Holder, 557 

U.S. 29, 32 (2009)), abrogated on other grounds by Mellouli v. Lynch, 575 

U.S. 798 (2015). We agree with the Immigration Judge and will remand the 

 

5 See Esquivel v. Lynch, 803 F.3d 699, 703–05 (5th Cir. 2015) (explaining the differences 

between the “simple possession” and “personal use” exceptions). 

6

 We leave for another day whether there are any circumstances under which the “simple 

possession” exception may waive inadmissibility under section 212(a)(2)(B) or (C) of the 

Act, because this case does not present that question. 
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record for her to apply the circumstance-specific approach to the 

respondent’s case in the first instance. 

 We previously held that the circumstance-specific approach applies in 

determining whether, for purposes of a waiver under section 212(h), an 

applicant committed “a single offense of simple possession of 30 grams or 

less of marijuana.” Id. at 124–25.7

 We reasoned that this language invited 

a circumstance-specific inquiry under Nijhawan because it “referenc[ed] 

a specific type of conduct (simple possession) committed on a specific 

number of occasions (a ‘single’ offense) and involving a specific quantity 

(30 grams or less) of a specific substance (marijuana).” Id. at 124. Because 

the “simple possession” exception at section 245(h)(2)(B) contains identical 

language and is defined just as narrowly as the exception under section 

212(h), we conclude that it also calls for a circumstance-specific inquiry into 

the nature of the conduct surrounding an applicant’s simple possession 

offense. See Pereira, 138 S. Ct. at 2115 (“[I]t is a normal rule of statutory 

construction that identical words used in different parts of the same act are 

intended to have the same meaning.” (citation omitted)).8

 

 The respondent counters that Nijhawan analyzed the aggravated felony 

ground of removability at section 101(a)(43)(M)(i) of the Act, which renders 

an alien removable for an offense that involves fraud or deceit “in which” the 

loss to the victim exceeds $10,000. He argues that the phrase “in which” in 

this provision indicates that the circumstance-specific approach applies, 

whereas the “simple possession” exception includes the phrase “related to,” 

which the Court in Mellouli found calls for a categorical inquiry. 

 We are unpersuaded by the respondent’s argument. Mellouli dealt with 

the proper method for assessing an alien’s removability; it did not address 

the distinct issue here: the proper method for determining an alien’s 

eligibility for a waiver of inadmissibility. The Court has long held that the 

categorical approach applies when evaluating an alien’s removability, 

particularly where the ground of removability at issue requires 

a “conviction.” See, e.g., Moncrieffe v. Holder, 569 U.S. 184, 190–91 

 

7

 We disagree with the respondent’s contention that Mellouli abrogated our holding in 

Matter of Martinez Espinoza that section 212(h) calls for a circumstance-specific inquiry. 

The Court in Mellouli specifically abrogated the portion of our decision addressing the 

ground of inadmissibility under section 212(a)(2)(A)(i)(II) of the Act; it did not disagree 

with, nor did it address, our discussion of 212(h). See Mellouli, 575 U.S. at 809 (citing 

Matter of Martinez Espinoza, 25 I&N Dec. at 120–21). 

8

 We have likewise concluded that the “personal use” exception in section 237(a)(2)(B)(i) 

of the Act, which contains similarly narrow language, calls for a circumstance-specific 

inquiry. See Matter of Davey, 26 I&N Dec. 37, 39 (BIA 2012). We reaffirmed Davey in 

Matter of Dominguez-Rodriguez, 26 I&N Dec. 408, 411–12 (BIA 2014), and a recent 

circuit court decision deferred to our holdings in Dominguez-Rodriguez and Davey. See 

Cardoso de Flores v. Whitaker, 915 F.3d 379, 382 (5th Cir. 2019) (per curiam). 
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317 

(2013). However, section 245(h)(2)(B) does not require a “conviction,” and 

thus it does not mandate a categorical inquiry. Mellouli is distinct, moreover, 

because, although the Department of Homeland Security bears the burden of 

establishing removability, the respondent is required to establish his 

eligibility for relief from removal, including his eligibility for a section 

245(h)(2)(B) waiver. See Pereida v. Wilkinson, 141 S. Ct. 754, 760 (2021) 

(stating that the Act provides that “‘[a]n alien applying for relief or protection 

from removal has the burden of proof to establish’ that he ‘satisfies the 

applicable eligibility requirements’ and that he ‘merits a favorable exercise 

of discretion’” (alteration in original) (citation omitted)). We therefore 

conclude that the “simple possession” exception under section 245(h)(2)(B) 

of the Act calls for a circumstance-specific inquiry. 

III. CONCLUSION 

 The respondent may seek a waiver of his inadmissibility under section 

212(a)(2)(A)(i)(II) pursuant to section 245(h)(2)(B) of the Act. However, 

we will remand the record to allow the Immigration Judge to evaluate, in the 

first instance, whether he qualifies for the “simple possession” exception to 

section 245(h)(2)(B) under the circumstance-specific approach. We express 

no opinion regarding the outcome on remand. Accordingly, the respondent’s 

appeal is sustained, and the record is remanded for further consideration of 

the respondent’s application for adjustment of status and request for a waiver 

of his inadmissibility. 

ORDER: The respondent’s appeal is sustained. 

FURTHER ORDER: The record is remanded for further proceedings 

consistent with the foregoing opinion and for the entry of a new decision.