Immigration's Stance on Drug Paraphernailia

The Board of Immigration Appeals (BIA) issued a decision in November 2009, Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009) where it had to decide how drug paraphernalia offenses should be treated under the inadmissiblity provisions of the immigration laws.

The Board did find that drug paraphernalia can render an alien inadmissible, but left open the possiblilty for a foreign national to seek a 212(h) waiver as the language of the waiver section only requires a "relating to" 30 grams or less of marijuana. 

I disagree wth the Board's logic when it stated:

"The respondent’s last argument is that possessing drug paraphernalia cannot make him inadmissible because no Federal law forbids such conduct. (Footnote: Federal law makes it a felony for any person to “(1) sell or offer for sale drug paraphernalia; (2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or (3) to import or export drug paraphernalia.” 21 U.S.C. § 863(a) (2006). However, the simple possession and use of drug paraphernalia is not federally proscribed.)   However, section 212(a)(2)(A)(i)(II) of the Act does not require that a State offense be punishable under Federal law in order to support a charge of inadmissibility."

This begs the question: How does an act that is not a crime under U.S. Federal Law make a person criminally deportable or inadmissible under U.S. Federal Immigration laws?  I believe clarification is required in this area of ever chaning laws.  Recent Court decisions in Lopez and Carrachuri warrant a reexamination of how drug paraphernalia should be treated.

The case below:

BIA on Drug Paraphernalia - Martinez Espinoza -