David McGrath v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: RENDELL, Authoring Judge, SMITH and KRAUSE, Circuit Judges. Total Pages: 5.

Case: 13-3997

Document: 003111861096

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Date Filed: 01/29/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-3997
____________
DAVID MCGRATH,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent

On Petition for Review of an Order of
the Board of Immigration Appeals
Agency No.: A077-948-510
Immigration Judge: Honorable Andrew R. Arthur

Submitted under Third Circuit LAR 34.1(a)
on January 20, 2015

Before: RENDELL, SMITH, and KRAUSE, Circuit Judges
(Opinion filed: January 29, 2015)

O P I N I O N*

RENDELL, Circuit Judge:
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Document: 003111861096

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Date Filed: 01/29/2015

David McGrath (“McGrath”) petitions pro se for review of the Board of
Immigration Appeals’ (“BIA”) September 6, 2013 decision, which upheld the denial of
his application for adjustment of status in conjunction with finding him statutorily
ineligible for a waiver of inadmissibility.1 Because McGrath’s conviction under New
York Penal Law § 220.06 precludes him from eligibility for a § 212(h) waiver and his
other arguments also lack merit, we will affirm.2
I. McGrath’s § 212(h) Ineligibility
The Attorney General may, in his discretion, waive the application of
§ 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (the “Act”), which makes
inadmissible an alien who commits a crime of moral turpitude, “insofar as [the crime]
relates to a single offense of simple possession of 30 grams or less of marijuana,”
provided that certain criteria are met. 8 U.S.C. § 1182(h). Pursuant thereto, “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.” Matter of Martinez
Espinoza, 25 I. & N. Dec. 118, 125 (BIA 2009) (alteration in original).
McGrath argues that because the statute under which he was convicted prohibits,
inter alia, simple possession of “one or more preparations, compounds, mixtures or

1

Although McGrath has since been removed, his removal does not moot this appeal. See
Chong v. Dist. Dir., I.N.S., 264 F.3d 378, 385 (3d Cir. 2001).
2
We have jurisdiction pursuant to 8 U.S.C. § 1252(a) for “constitutional claims or
questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D).
2

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substances containing concentrated cannabis . . . of an aggregate weight of one-fourth
ounce [7.087 grams] or more,” N.Y. Penal L. § 220.06(4), it is possible that his
conviction was for simple possession of less than thirty grams of marijuana. This
argument fails because marijuana is not a preparation, compound, mixture, or substance,
containing “concentrated cannabis.”3 A conviction for simple possession of marijuana
would instead have fallen under New York Penal Law § 221.10.4 Indeed, New York
Penal Law Article 221 is titled “offenses involving marijuana,” whereas § 220.06 is
under Article 220, which is titled “controlled substances offenses.” To the extent that
McGrath wishes to call a witness to testify that he actually possessed only marijuana,
“removal proceedings are not a venue for the relitigation of criminal prosecutions.”
Martinez Espinoza, 25 I. & N. Dec. at 125.
II. McGrath’s Remaining Arguments
McGrath’s remaining arguments likewise fail. Two of these arguments address
purported errors that the BIA committed in denying him a § 212(h) waiver. These
arguments are not worthy of consideration because we agree with the BIA that McGrath

Under New York law, concentrated cannabis is: “(a) the separated resin, whether crude
or purified, obtained from a plant of the genus Cannabis;” or “(b) a material, preparation,
mixture, compound or other substance which contains more than two and one-half
percent by weight of delta-9 tetrahydrocannabinol, or its isomer, delta-8 dibenzopyran
numbering system, or delta-1 tetrahydrocannabinol or its isomer, delta 1 (6) monoterpene
numbering system.” N.Y. Pub. Health L. § 3302(4).
4
See N.Y. Penal L. § 221.10(2) (criminalizing simple possession of “one or more
preparations, compounds, mixtures or substances containing marihuana and the
preparations, compounds, mixtures or substances [that] are of an aggregate weight of
more than twenty-five grams”).
3

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is statutorily ineligible for a § 212(h) waiver.5 See Wilson v. Ashcroft, 350 F.3d 377, 381
(3d Cir. 2003) (“[O]nce we determine that the state criminal statute fits the legal
definition [under the INA] . . . , our review of an alien’s deportability comes to an end.”).
McGrath also argues that the BIA abused its discretion by failing to grant him a
continuance. McGrath sought a continuance in order to gather evidence that would
purportedly show that his conviction was for simple possession of marijuana. However,
in light of the plain statutory text of New York Penal Law § 220.06, which does not
prohibit simple possession of marijuana, his attempts would have been futile.
Accordingly, the BIA did not abuse its discretion.
McGrath’s final argument is that the BIA should have permitted him to argue for
other forms of relief—namely, asylum, withholding of removal, Convention Against
Torture protection, or cancellation of removal under INA § 240A(b)(1). McGrath’s only
attempt to show eligibility for any of these four forms of relief is to claim that he may be
eligible for § 240A(b)(1) cancellation of removal by virtue of the “exceptional and
extremely unusual hardship to [his] . . . parent . . . , who is a citizen of the United States
or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D).
However, to be eligible for cancellation of removal, he must have “not been convicted of
an offense under section 212(a)(2)” of the INA, id. § 1229b(b)(1)(C), and, as already
discussed, McGrath’s conviction under § 220.06 qualifies as an offense under

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First, McGrath asserts that the BIA engaged in improper fact finding when it stated that
he was “sentenced to time served and 5 years’ probation.” Second, he argues that the
BIA improperly relied on the police report from his arrest, which stated that he was
arrested for cocaine possession.
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§ 212(a)(2). The burden of proof to show that he was eligible for any of these forms of
relief was his to shoulder, and he has failed to do so. See Li Hua Yuan v. Att’y Gen., 642
F.3d 420, 425-26 (3d Cir. 2011); see also Hernandez-Cruz v. Att’y Gen., 764 F.3d 281,
284 n.1 (3d Cir. 2014).
III. Conclusion
For the foregoing reasons, we will affirm.

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