U.S.

epartment of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS LIT./York Co. Prison/YOR

738 MAIN STREET

STROUDSBURG, PA 18360

3400 Concord Road

York, PA 17402

Name: MERCHELSKI, MARCIN

A 043-700-889

Date of this notice: 4/9/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DOrt.ltL ctVvV
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Marcin Merchelski, A043 700 889 (BIA Apr. 9, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

JEFFREY G. VELANDER, Esq.

. U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

Date:

A043 700 889 - York, PA

APR

9 2Q15

In re: MARCIN MERCHELSK.I

APPEAL
ON BEHALF OF RESPONDENT:

Jeffrey G. Velander, Esquire

Jeffrey T. Bubier

ON BEHALF OF DHS:

Senior Attorney
CHARGE:
Notice:

Sec.

237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] Convicted of controlled substance violation

APPLICATION: Termination

The

Department

of

Homeland

Security

("DHS")

appeals

the

Immigration

Judge's

May 6, 2013, decision terminating proceedings. The appeal will be dismissed.

We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).

The respondent, a lawful permanent resident of the United States, was convicted on
November 20, 2012, of Intentional Possession of a Controlled Substance in violation of 35 P.S.
780-l 13(a)(l6) (l.J. at I) (May 2, 2013). The DHS issued him a Notice to Appear ("NTA"),
charging

him

with

removability

under

section

237(a)(2)(B)(i)

of

the

Act,

U.S.C.

1227(a)(2)(B)(i), as an alien convicted of a controlled substance violation (Exh. 1). The

respondent denied that he was removable. Under

Matter of Davey, 26 I&N

Dec. 3 7 (BIA 2012),

which holds that the circumstance specific approach applies to the section 237(a)(2)(B)(i)
exception for a single offense involving possession for one's own use of 30 grams or less of
marijuana, the Immigration Judge concluded that the DHS did not meet its burden to establish by
clear and convincing evidence that the respondent was removable, as it is unclear whether the
respondent possessed 30 grams or less of marijuana (I.J. at 2). As such, the Immigration Judge
terminated proceedings against the respondent. The DHS now appeals.
The DHS argues on appeal that under the circumstance specific approach, the affidavit of
probable cause, Pennsylvania State Police Incident Report, and State Police Laboratory Report
establish that the respondent's conviction was not for a single offense involving possession for
one's own use of 30 grams or less of marijuana. We disagree. Even if we were to conclude that
it is appropriate to consider those documents under the circumstance specific approach, we

Cite as: Marcin Merchelski, A043 700 889 (BIA Apr. 9, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A043 700 889

would nonetheless agree with the Immigration Judge's conclusion that the DHS did not meet
their burden of proof. As found by the Immigration Judge, DHS has not established with clear
and convincing evidence that the respondent was convicted of possessing more than 30 grams of
marijuana. The record is inconclusive as to what portion of the 109.69 grams of marijuana
was possessed by the respondent. The DHS documents do not clarify the issue.

DHS assertion that the respondent must have possessed more

than 30 grams of marijuana because he was not convicted of the lesser offense for possession of
30 grams or less of marijuana (DHS Brief at 9). While the DHS may be correct in stating that
the general rule is that the lesser offense would be charged in cases where the individual
possessed less than 30 grams of marijuana, it is unclear whether that rule applies in cases like
this one, where two individuals are convicted for possession of one lump sum and the amount
attributable to each individual is uncertain. Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.

FORTHEBOARD

Cite as: Marcin Merchelski, A043 700 889 (BIA Apr. 9, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

We further disagree with the

. .

UNITED STATE=S DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA

In the Matter of

MARCIN MERCHELSKI
RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: JEFFREY VELANDER

ON BEHALF OF OHS: RICHARD S. O'BRIEN

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a 27-year-old male native and citizen of Poland. On March

25th, 2013.i. the Department of Homeland Security filed a Notice to Appear with the
Immigration Court in York, Pennsylvania:.-, and tihe filing aAdof the Notice to Appear
vests a&-te-jurisdiction with this Court. That document is marked as Exhibit 1. On April
the 5th, 2013 the Court took pleadings. Respondent admitted Allegations 1 through 3.L
but denied Allegation number 4 and denied removability. The Court marked a packet of
documents submitted by the Government into the record as Exhibit 2 and a packet of

Cite as: Marcin Merchelski, A043 700 889 (BIA Apr. 9, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

May 6, 2013

File: A043-700-889

documents submitted by the respondent as Exhibit 3.

The Court requested briefing from the parties with respect to the ground of
removability. The Court had the opportunity to review the argument made by Counsel

Government had failed to establish Allegation number 4 by clear and convincing

evidence and had failed to establish the ground of removability by clear and convincing
evidence. The Court has set the matter over to t9day. No additional evidence has been
submitted by the parties. The Court incorporates its May 2nd, 2013 decision into this
decision as set forth herein.
Based on the Court's findings in the May 2nd, 2013 decision, and based
on the Court's review of Exhibits 2 and 3, the Court finds that the Government has failed
to establish by clear and convincing evidence that the respondent was convicted as
alleged in Allegation number 4 in the Notice to Appear and has failed to show that the
respondent is removable as charged.
Accordingly, it is the order of the Court that these proceedings be
terminated without prejudice fGF !Q_refiling.

. :

Please see the next page for electronic

signature
ANDREW R. ARTHUR
Immigration Judge

A043-700-889

May 6,

2013

Immigrant & Refugee Appellate Center | www.irac.net

for the Government, and the Court in a decision dated May the 2nd, 2013 found that the

..

'

//s//
Immigration Judge ANDREW R.
arthura on July 3,

ARTHUR

2013 at 2:00 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A043-700-889

May

6,

201'3