                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-1774
                                     ___________

                             MARLON DENNIS ALLEN,
                                             Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                            Respondent
                    ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A096 301 670)
                 Immigration Judge: Honorable Charles M. Honeyman
                    ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 12, 2012
            Before: SMITH, GREENAWAY, JR., and WEIS, Circuit Judges
                         (Opinion filed: December 17, 2012)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM.

      Marlon Dennis Allen petitions from an order of the Board of Immigration Appeals

(“BIA” or “Board”), which rejected his administrative appeal of an Immigration Judge’s

(“IJ”) removal order. We will deny the petition for review.

                                            1
                                             I.

       The parties are already familiar with the facts and issues in this case. Therefore,

we limit our discussion to those facts and issues essential to our decision. Allen was

charged with being removable for remaining in the United States beyond the time

authorized, and for having committed a controlled substance violation “other than a

single offense involving possession for one’s own use of 30 grams or less of marijuana.”

Allen conceded that he was removable on the first charge, but denied the marijuana

charge. An Immigration Judge (“IJ”) found that the Government had failed to meet its

burden of showing that Allen’s conviction under § 65-4162(a)(3) of the Kansas criminal

statutes1 was for a crime involving more than 30 grams of marijuana. The IJ thus

dismissed the controlled substance charge of removability.

       Allen then sought to adjust his status to that of a permanent resident based on his

marriage to his U.S.-citizen wife. In order to adjust his status, Allen needed to show that

he is admissible to the United States. Section 212(a)(2)(A)(i)(II) of the Immigration and

Naturalization Act (“INA”) [8 U.S.C. § 1182(a)(2)(A)(i)(II)] renders inadmissible an

alien who has been convicted of a controlled substance violation. However, pursuant to

INA § 212(h) [8 U.S.C. § 1182(h)], the Attorney General may waive the controlled


1
  At the time of Allen’s conviction, K.S.A. § 65-4162(a)(3) stated in pertinent part,
“[e]xcept as authorized by the uniform controlled substances act, it shall be unlawful for
any person to possess or have under such person’s control . . . any hallucinogenic drug.”
The statute included marijuana as an hallucinogenic drug. State v. Lundquist, 55 P.3d
928, 931 (Kan. Ct. App. 2002). Any amount of marijuana, whether measurable or not,
was sufficient for a conviction under this statute. Id. at 932.
                                              2
substance violation ground of inadmissibility if the conviction in question “relates to a

single offense of simple possession of 30 grams or less of marijuana.” Where the

“evidence indicates that one or more of the grounds for mandatory denial of the

application for relief may apply, the alien shall have the burden of proving by a

preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d).

       According to the police report in the record, Allen’s conviction involved an

incident where a car he was riding in, and a second car, were pulled over by the police in

Kansas. The police report indicated that the two cars were travelling together, and that

there were approximately 148 pounds of marijuana in the second car. A.R. 298-300.2

Allen submitted to the IJ a sworn statement indicating that he had never before seen the

occupants of the second car until they were stopped, that he had no involvement with the

marijuana in the second car, and that, on the advice of counsel, he pleaded guilty to a

misdemeanor possession charge with a penalty of one year of unsupervised probation so

that he could go home. A.R. 329-31. The IJ found that Allen did not meet his burden

for a § 212(h) waiver. On appeal, the Board agreed that Allen had not met his burden of

proving that he was eligible for relief from removal.




2
  Allen argues that the IJ erred by “giv[ing] credence to th[e] police report.” Pet. Br. at
22. However, the BIA did not refer to the report, and considered only the fact of Allen’s
conviction.

                                             3
                                             II.

       Section 212(h) of the INA provides that “[n]o court shall have jurisdiction to

review a decision of the Attorney General to grant or deny a waiver under this

subsection.” 8 U.S.C. § 1182(h); see also 8 U.S.C. § 1252(a)(2)(B)(i). However, the

REAL ID Act restored our jurisdiction to consider constitutional questions and questions

of law, despite this limiting provision. INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)].3

Allen seeks to raise two issues: (1) “Whether Petitioner’s oral testimony and written

affidavit was sufficient to establish that he possessed less than thirty grams of marijuana,

making him eligible for a waiver of admissibility pursuant to INA § 212(h)?”; and (2)

“Whether the BIA erred by affirming the IJ’s failure to grant the Petitioner an opportunity

to secure evidence that the IJ deemed crucial corroborative evidence for the first time in

rendering his decision?” Pet. Br. at 6.

       We agree with the Government that Allen’s first issue does not present a

constitutional question or question of law. See Aden v. Holder, 589 F.3d 1040, 1046

(9th Cir. 2009) (applying factual review standard to question of sufficiency of

corroboration); Abraham v. Holder, 647 F.3d 626, 632 (7th Cir. 2011) (IJ’s conclusion

that applicant lacked sufficient credible evidence to meet standard for untimely asylum

claim not a question of law). Whether the credible testimony of an applicant can ever be

sufficient to meet the burden of showing eligibility of relief might be viewed as a

3
  “When the BIA issues its own decision on the merits, rather than a summary
affirmance, we review its decision, not that of the IJ.” Hanif v. Att’y Gen., 694 F.3d 479,
483 (3d Cir. 2012) (citing Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d Cir. 2009)).
                                             4
question of law. But the BIA acknowledged that an applicant’s credible and

uncontradicted “testimony regarding the amount of marijuana he possessed . . . could in

principle be sufficient to meet the alien’s burden of proof.” A.R. 3. However, it noted

that Allen had “testified that he possessed no marijuana at all.” Id. The Board found

such testimony “insufficient to carry [Allen’s] burden of proof because it flatly

contradicts other evidence in the record establishing that he was found guilty by a Kansas

court of possessing some quantity of marijuana.” Id. at 3-4. We cannot review the

Board’s factual determination that Allen’s showing was insufficient. Further, we agree

with the BIA’s statement of law that an IJ is not allowed to look behind the record of a

conviction to determine an alien’s guilt or innocence. See, e.g., Cheuk Fung S-Yong v.

Holder, 600 F.3d 1028, 1036 (9th Cir. 2010). Thus, the IJ was required to find that Allen

had been convicted of possession of some amount of marijuana. Allen did not show that

he was convicted for possessing an amount less than 30 grams.

       We need not reach Allen’s second argument, as the BIA did not mention the IJ’s

conclusion that Allen should have presented more corroborative evidence. In any event,

we agree with the Government that Allen was reminded on numerous occasions that it

was his burden to prove that the conviction was for possession of less than 30 grams of

marijuana.

       For the foregoing reasons, we will deny the petition for review.




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