Labrosciano v. Holder
An individual who pleads guilty under the Alford doctrine to purchase of marijuana with intent to transfer may not be entitled to a waiver of inadmissibility, pursuant to 8 United States Code §1182. The petitioner, a citizen of Jamaica, allegedly admitted that she purchased marijuana for two men at a bar. The petitioner pled guilty under the Alford doctrine to charges of "selling" marijuana. The petitioner applied for adjustment of status and a waiver of inadmissibility. 8 U.S.C. §1182(a)(2)(A)(i)(II) provides, "[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . is inadmissible." In January 2012, the Board of Immigration Appeals concluded that the petitioner's conviction for "selling" marijuana, in violation of Connecticut General Statutes §21a-277(b), made her inadmissible, because it was a crime "relat[ing] to a controlled substance." Connecticut's statute applies to "[a]ny person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana. . . ." The petitioner appealed to the 2nd Circuit, which reviewed de novo. Alford pleas qualify as convictions, for the purposes of immigration. In Garcia v. Holder, a 2011 decision, the 6th Circuit held that an alien was ineligible for a waiver of inadmissibility under §1182, because he pled guilty to attempted possession of marijuana with the intent to deliver, as opposed to "simple possession." The 2nd Circuit rejected any claim that the petitioner was convicted for simple possession. The petitioner was convicted under a statute that punishes conduct that includes a more culpable "intent to transfer" element. The board did not err when it found the petitioner was not eligible for a waiver of inadmissibility, pursuant to §1182, and the 2nd Circuit denied the petition for review.