                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-2502
ARTURO ESCOBAR BARRAZA,
                                                        Petitioner,
                               v.

MICHAEL B. MUKASEY, Attorney General
of the United States,
                                                       Respondent.
                        ____________
              Petition for Review of an Order of the
                 Board of Immigration Appeals.
                        ____________
    ARGUED FEBRUARY 27, 2008—DECIDED MARCH 13, 2008
                        ____________


  Before EASTERBROOK, Chief Judge, and POSNER and WOOD,
Circuit Judges.
  EASTERBROOK, Chief Judge. Arturo Escobar Barraza, a
citizen of Mexico, applied for permission to remain in
the United States as a permanent resident under a provi-
sion establishing a preference for immediate relatives of
citizens. (Both his wife and his mother are citizens of the
United States.) Before the agency made a final decision on
this application, however, Escobar was convicted in
Nebraska of possessing drug paraphernalia—specifically,
a pipe for smoking marijuana. Neb. Rev. Stat. §28-441. An
2                                                No. 07-2502

immigration judge concluded that this conviction makes
Escobar inadmissible, see 8 U.S.C. §1182(a)(2)(A)(i)(II),
and an alien who is inadmissible at the time he seeks
adjustment of status not only is ineligible for permanent
residence, see 8 U.S.C. §1227(a)(1)(A), but also is not
entitled to remain in the United States. The IJ ordered
him removed to Mexico, and the Board of Immigration
Appeals agreed.
  Escobar’s lead argument is that §1182(a)(2)(A)(i)(II) is
inapplicable because no federal law forbids simple posses-
sion of drug paraphernalia—though 21 U.S.C. §863 bans
the import, export, or sale of drug paraphernalia. Section
1182(a)(2)(A)(i)(II) applies to “a violation of (or a con-
spiracy or attempt to violate) any law or regulation of a
State, the United States, or a foreign country relating to a
controlled substance (as defined in section 802 of title 21)”.
As Escobar understands this language, the phrase “as
defined in section 802 of title 21” modifies the entire text
of the subsection rather than the immediate antecedent
(“controlled substance”). He contends, in other words,
that §1182(a)(2)(A)(i)(II) operates similarly to 8 U.S.C.
§1101(a)(43)(B), which Lopez v. Gonzales, 127 S. Ct. 625
(2006), read to create a rule that drug offenses under state
law may be treated as aggravated felonies for immigra-
tion purposes only if the deeds also are felonies under
federal law. See also United States v. Pacheco-Diaz, 506 F.3d
545 (7th Cir. 2007), rehearing denied, No. 05-2264 (7th Cir.
Jan. 29, 2008).
  Section 1101(a)(43)(B) defines an “aggravated felony” to
include “illicit trafficking in a controlled substance . . .
including a drug trafficking crime (as defined in sec-
tion 924(c) of title 18)”; the Court read the parenthetical
phrase to refer to the immediate antecedent and thus to
No. 07-2502                                                  3

cover only events that are crimes under federal law.
In §1182(a)(2)(A)(i)(II), by contrast, the immediate ante-
cedent is “controlled substance”, and the interpretive
stance taken by Lopez thus does not assist Escobar, for
marijuana is a controlled substance under Schedule I,
21 U.S.C. §812(c)(I)(c)(10), to which 21 U.S.C. §802(6)
points.
   No court of appeals has applied the hypothetical-federal-
felony approach to §1182(a)(2)(A)(i)(II). Escobar’s reading
is not grammatically sound. “[V]iolation of . . . any law
or regulation of a State . . . (as defined in section 802 of
title 21)” would be incoherent. Section 802 does not
“define” states or state laws; it defines many terms used
in Title 21, including the Schedules on which controlled
substances are listed, but does not say which acts con-
cerning what substances are lawful and which forbidden.
The only plausible understanding of §1182(a)(2)(A)(i)(II)
is that “as defined in section 802 of title 21” modifies
“controlled substance” and nothing else.
  Although §1182(a)(2)(A)(i)(II) makes Escobar inad-
missible, the Attorney General may permit some inad-
missible aliens to enter or remain in the United States.
Section 212, 8 U.S.C. §1182(h), is among the grants of
discretionary authority. This subsection reads:
    The Attorney General may, in his discretion, waive
    the application of subparagraphs (A)(i)(I), (B), (D),
    and (E) of subsection (a)(2) of this section and
    subparagraph (A)(i)(II) of such subsection insofar
    as it relates to a single offense of simple possession
    of 30 grams or less of marijuana if— . . .
        (1)(B) in the case of an immigrant who is the
        spouse, parent, son, or daughter of a citizen of
        the United States or an alien lawfully admitted
4                                               No. 07-2502

        for permanent residence if it is established to
        the satisfaction of the Attorney General that the
        alien’s denial of admission would result in
        extreme hardship to the United States citizen
        or lawfully resident spouse, parent, son, or
        daughter of such alien; . . . [and] . . .
        (2) the Attorney General, in his discretion, and
        pursuant to such terms, conditions and proce-
        dures as he may by regulations prescribe, has
        consented to the alien’s applying or reap-
        plying for a visa, for admission to the United
        States, or adjustment of status.
    No waiver shall be provided under this subsection
    in the case of an alien who has been convicted of
    (or who has admitted committing acts that consti-
    tute) murder or criminal acts involving torture, or
    an attempt or conspiracy to commit murder or a
    criminal act involving torture. No waiver shall be
    granted under this subsection in the case of an
    alien who has previously been admitted to the
    United States as an alien lawfully admitted for
    permanent residence if either since the date of such
    admission the alien has been convicted of an
    aggravated felony or the alien has not lawfully
    resided continuously in the United States for
    a period of not less than 7 years immediately
    preceding the date of initiation of proceedings to
    remove the alien from the United States. No court
    shall have jurisdiction to review a decision of the
    Attorney General to grant or deny a waiver under
    this subsection.
  Because Escobar is inadmissible under
§1182(a)(2)(A)(i)(II), a waiver is possible only if his con-
No. 07-2502                                                  5

viction “relates to a single offense of simple possession of
30 grams or less of marijuana”. The IJ and BIA concluded
that this means that the conviction itself must be for
simple possession of marijuana; a drug-paraphernalia
crime differs from “simple possession . . . of marijuana”
and makes waiver impossible. The Board wrapped up:
“Despite the fact that [this] reading might result in harsher
results for someone convicted of what might be con-
sidered a lesser crime, possession of paraphernalia, than
for someone convicted of possession of 30 grams or less
of marijuana, the law is quite clear on its face and we
apply the law as written.”
  Two preliminary subjects before we take up Escobar’s
challenge to this decision.
   First, the concluding sentence of the hanging para-
graph—“No court shall have jurisdiction to review a
decision of the Attorney General to grant or deny a
waiver under this subsection.”—does not foreclose
judicial review, because 8 U.S.C. §1252(a)(2)(D) adds a
proviso: “constitutional claims or questions of law” remain
reviewable. Escobar wins if §1182(h) means one thing
and loses if it means something different; that’s the sort
of legal question to which §1252(a)(2)(D) refers. See Cevilla
v. Gonzales, 446 F.3d 658 (7th Cir. 2006); Jiménez Viracacha v.
Mukasey, No. 07-1548 (7th Cir. Mar. 3, 2008).
  Second, we do not give any special weight to the agency’s
construction of §1182(h). That’s not because we think the
statute unambiguous; the phrase “relates to” creates
interpretive problems. But the Board (acting by a single
member) asserted that the statute is clear, and
by forswearing any exercise of administrative discretion
the Board also disabled its counsel from invoking the
principle of Chevron U.S.A. Inc. v. Natural Resources
6                                                 No. 07-2502

Defense Council, Inc., 467 U.S. 837 (1984). If the Board should
return to the subject in the future, our opinion
today—which as far as we can tell is the first judicial
encounter with this subsection—will not be the last word
on the statute’s administration. See National Cable &
Telecommunications Association v. Brand X Internet Services,
545 U.S. 967 (2005).
  Possessing a pipe for smoking marijuana is a crime
within the scope of §1182(a)(2)(A)(i)(II) because drug
paraphernalia relates to the drug with which it is used,
and that statute speaks of a crime “relating to a con-
trolled substance (as defined in section 802 of title 21)”.
If possession of drug paraphernalia relates to the con-
trolled substance for the purpose of §1182(a), why not
for the purpose of §1182(h)? The Board’s observation that
a conviction for possessing paraphernalia differs from
a conviction for possessing marijuana is true, but §1182(h)
is not limited to a conviction for possessing less than
30 grams of marijuana. The phrase is: “such subsection
insofar as it relates to a single offense of simple possession
of 30 grams or less of marijuana” (emphasis added). The
Board’s understanding deprives the italicized phrase of
any function, treating “relates to” as if it were “is”. Neither
the Board’s opinion nor the brief and argument by the
Department of Justice has suggested what “relates to”
means, or how that phrase can bring a paraphernalia
conviction within §1182(a)(2)(A)(i)(II) but not §1182(h).
  Consider someone who is arrested while smoking
marijuana from a pot pipe at a concert. In most states, that’s
three crimes: possessing marijuana, possessing drug
paraphernalia, and using drugs in a public place. If the
state obtains a conviction for possessing marijuana, then
§1182(h) applies if the alien had 30 grams or less. (A 6-
No. 07-2502                                                 7

ounce (170 gram) can of loose tobacco, see Top Tobacco,
L.P. v. North Atlantic Operating Co., 509 F.3d 380 (7th Cir.
2007), is sold as enough for 200 cigarettes; this implies that
30 grams of marijuana is considerably more than one
person could smoke at a concert.) Likewise, we
should suppose, if the prosecutor charges the alien with
smoking pot in public, that conviction “relates to” the
marijuana being smoked. Section 1182(h) speaks of a
conviction that relates to an “offense” of possessing
marijuana; an “offense” may or may not lead to a “convic-
tion” for that possession. That’s how a conviction for
smoking pot in public relates to the offense of possessing
marijuana. And it is hard to see why things should
be different if the prosecutor charges the alien with pos-
sessing paraphernalia to smoke the weed. 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.
   What distinguishes our hypothetical from Escobar’s
situation is that, when he was caught, he had the pipe but
not the pot. (At least the charging documents don’t say
that he had any in his possession when he was arrested.)
Still, the pipe must be “related to” possession of marijuana;
that relation is why possessing the pipe was illegal. Own-
ing a pipe for smoking tobacco does not violate any law; it
is the relation of a given pipe to its use with a forbidden
drug that makes it “drug paraphernalia.”
  So there is no logical problem in treating a pot pipe as
related to marijuana, whether or not the pipe and the
marijuana are found together in a pouch. There remains the
question whether the paraphernalia conviction relates to
8                                               No. 07-2502

“simple possession of 30 grams or less of marijuana”. If
Escobar had been caught with the pipe and five grams,
the answer would be yes. As it happens, he was caught
with the pipe and zero grams. Yet zero is less than five.
The ancient Romans and Greeks did not think zero a
number, but today we understand that zero is smaller
than 30. Actually it is most unlikely that Escobar’s quantity
of marijuana was “zero”; the reason the pipe he was
carrying could be classed as drug paraphernalia was the
presence of a minute quantity of marijuana (or cannabis
residue) in the bowl or stem. A “minute quantity” is less
than 30 grams.
  We appreciate the potential reply that Escobar’s stash
may well have exceeded 30 grams, but that the police
failed to locate it. That could be equally true in our con-
cert hypothetical, however. Someone who takes 5 grams
of marijuana to a concert may have 100 grams at home.
The music lover arrested and convicted for possessing
5 grams at the concert is eligible for a waiver under
§1182(h), no matter how much else eluded detection. The
statute asks about the amount underlying the convic-
tion, not about the amount the alien actually owned. It is
part of a charge-offense system that uses official records,
rather than a real-offense system that asks what crimes
the alien committed but has not been convicted of.
  Pipes, roach clips, and other paraphernalia designed for
use with personal-possession quantities of marijuana
come within §1182(h) because the paraphernalia relates
to the drug, and the implied quantity is under 30 grams.
Scales, bagging gear, trays and lamps for growing
whole plants, and other apparatus for use with larger
quantities or distribution do not relate to “simple posses-
sion” and so fall outside the waiver. Drawing the line
No. 07-2502                                                9

will be difficult in some cases but is easy in Escobar’s.
His conviction for possessing one pot pipe “relates to a
single offense of simple possession of 30 grams or less of
marijuana”. He is therefore eligible for consideration
under §1182(h).
  Eligibility differs from entitlement. Whether Escobar
satisfies the standard in §1182(h)(1)(B), and, if so, whether
he is entitled to a favorable exercise of discretion under
§1182(h)(2), are for the agency to decide. The petition for
review is granted, the Board’s decision is vacated, and the
matter is remanded for proceedings consistent with this
opinion.




                   USCA-02-C-0072—3-13-08
