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Victor W. Zhao in Escobar-Barraza v. Mukasey, Docket No. 07-2502

13 March 2008
Mayer Brown Article
On February 27, 2007, Victor Zhao, an Associate in Mayer Brown's Houston Office, argued in the United States Court of Appeals for the Seventh Circuit on behalf of Arturo Escobar-Barraza, a Mexican national residing in Nebraska. He was assisted on the briefs and in oral argument preparation by former Associate Anne Kersch de Santin, in cooperation with Chuck Roth of the National Immigrant Justice Center. Partner Brett Busby supervised the appeal.

Mr. Escobar, an undocumented Mexican national who has been in the United States since his infancy, was placed in removal proceedings after his application for permanent residency, based on approved immigration petitions filed by his mother and wife, was administratively denied due to his prior convictions. During his removal proceedings, he was found guilty of possession of drug paraphernalia in a Nebraska court, an offense carrying the maximum penalty of a $100 and no incarceration. His conviction resulted from a traffic stop where the police recovered an empty marijuana pipe in the glove compartment of the car in which he was riding as a passenger.

An Immigration Court found that Mr. Escobar was removable because his offense is "related to a controlled substance" as defined by the federal Controlled Substances Act ("CSA"), under a statutory provision described in the briefs as the Inadmissibility Provision. Moreover, the judge also found that Mr. Escobar was not eligible for a waiver for the offense because his offense did not "relate[] to simple possession of 30 grams or less of marijuana," under a statutory provision described in the briefs as the Waiver Provision. The Board of Immigration affirmed the Immigration Court in a terse two-page opinion.

Having been appointed by the Seventh Circuit to represent Mr. Escobar on appeal, we argued that, inter alia, Mr. Escobar's offense does not relate to a controlled substance under the CSA because paraphernalia possession is not a punishable crime under the CSA. Alternatively, we argued that should the offense "relate" to a controlled substance for purposes of the Inadmissibility Provision, it must similarly relate to possession of 30 grams or less of marijuana for purposes of the Waiver Provision. For the alternative argument, our analysis focused on: (1) marijuana paraphernalia possession is obviously "related to" simple possession of marijuana for the purposes of the Waiver Provision if the same offense is "related to" a controlled substance for the purposes of the Inadmissibility Provision; and (2) such a construction is consistent with the intent of the legislature when it enacted the Waiver Provision - which was to grant a reprieve to the least serious drug offenders from the harsh measure of removal - considering that paraphernalia possession is a lesser crime than simple possession of 30 grams or less of marijuana in Nebraska, under federal law, and is a lesser or equal crime under the laws of the overwhelming majority of states.

The state responded by arguing that the language of both statutes is clear. Because marijuana is a controlled substance and Mr. Escobar's conviction was for possession of drug paraphernalia, his offense must relate to a controlled substance. Moreover, because the scope of the Waiver Provision is limited to possession of 30 grams or less of actual marijuana, it does not include paraphernalia possession offenses.

In the oral argument, the panel of Judges Easterbrook, Posner, and Wood focused on the language of relation and hypotheticals involving smoking marijuana in public places.

On March 13, 2008, the Court ruled in favor of Mr. Escobar, holding that his offense is within the scope of the Waiver Provision. In an opinion authored by Judge Easterbrook, the Court concluded that, "Not even Thomas Reed Powell - who famously defined the legal mind as one that can think of something that is inextricably connected to something else without thinking about what it is connected to - could miss the fact that a pot pipe is related to the pot that it is used to smoke."

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