MARTINEZ-ZAPATA

Cite as 24 I&N Dec. 424 (BIA 2007) 	Interim Decision #3594
In re Miguel Angel MARTINEZ-ZAPATA, Respondent
File A94 791 455 - Los Fresnos
Decided December 19, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
( 1) Any fact (including a fact contained in a sentence enhancement) that serves to increase
the maximum penalty for a crime and that is required to be found by a jury beyond a
reasonable doubt, if not admitted by the defendant, is to be treated as an element of the
underlying offense, so that a conviction involving the application of such an enhancement
is a conviction for the enhanced offense. Matter of Rodriguez-Cortes, 20 I&N Dec. 587
(BIA 1992), superseded.
(2) The exception under section 212(h) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(h) (2000), for an alien convicted of a single offense of simple possession of
30 grams or less of marijuana does not apply to an alien whose conviction was enhanced
by virtue of his possession of marijuana in a “drug-free zone,” where the enhancement
factor increased the maximum penalty for the underlying offense and had to be proved
beyond a reasonable doubt to a jury under the law of the convicting jurisdiction. Matter
of Moncada, 24 I&N Dec. 62 (BIA 2007), clarified.
FOR RESPONDENT: Jaime M. Diez, Esquire, Brownsville, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Joey L. Caccarozzo, Assistant
Chief Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated February 15, 2007, an Immigration Judge found the
respondent removable and pretermitted his applications for a waiver under
section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h)
(2000), in conjunction with his application for adjustment of status under
section 245 of the Act, 8 U.S.C. § 1255 (2000). The respondent has appealed
from that decision. The appeal will be dismissed. In adjudicating the appeal,
we have reexamined our precedent decision in Matter of Rodriguez-Cortes,
20 I&N Dec. 587 (BIA 1992), and find that it is superseded in light of the
decision of the United States Supreme Court in Apprendi v. New Jersey, 530
U.S. 466 (2000).
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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was admitted to the
United States on April 15, 2006. 	The record before the Immigration Judge
reflects that on January 12, 2005, the respondent was convicted in Texas by a
plea of no contest to possession of less than 2 ounces of marijuana in a
drug-free zone. 	The respondent’s offense was raised from a Class B
misdemeanor in violation of section 481.121(b)(1) of the Texas Health and
Safety Code to a Class A misdemeanor pursuant to section 481.134(f)(1),
because the offense was committed in a drug-free zone.
These proceedings were initiated against the respondent with the issuance
of the Notice to Appear on October 25, 2006. 	During the proceedings, the
Immigration 	Judge 	found 	the 	respondent 	removable 	as 	charged 	and
pretermitted his application for a waiver of inadmissibility under section
212(h) of the Act in conjunction with his application for adjustment of status.
According to the Immigration Judge, the respondent failed to establish his
eligibility for a waiver despite the fact that he demonstrated that he was
convicted of possession of less than 30 grams of marijuana. The Immigration
Judge specifically found that the respondent’s conviction was not for “simple
possession” within the meaning of section 212(h) because the offense was
committed in a drug-free zone, likening it to the conviction discussed in Matter
of Moncada, 24 I&N Dec. 62 (BIA 2007).
II. ISSUES
On appeal, the respondent contends that the Immigration Judge erred in
finding him ineligible for a waiver under section 212(h) of the Act because his
conviction is distinguishable from that in Matter of Moncada, supra. In that
case, we held that the exception under section 237(a)(2)(B)(i) of the Act,
8 U.S.C. § 1227(a)(2)(B)(i) (2000), for an alien convicted of possessing
30 grams or less of marijuana for his own use did not apply to an alien
convicted under a State statute containing an element requiring that the offense
occur in a prison or other protected location. We expressly reserved one of the
questions presented by this case, namely whether that same result obtains in
a situation in which “the above or a similar aggravating aspect of the offense
is established by virtue of a statutory penalty enhancement for marijuana
possession offenses, rather than . . . being a formal element.” 	Matter of
Moncada, supra, at 64 n.2. 	In that regard, we cited the Supreme Court’s
decision in Apprendi v. New Jersey, supra, at 494 n.19, where the Court noted
that a sentence enhancement can be the “functional equivalent of an element
of a greater offense than the one covered by the jury’s guilty verdict.”
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Following Apprendi, this case requires us to reexamine our decision in
Matter of Rodriguez-Cortes, supra, in which we held that a sentence
enhancement does not create a separate offense, but only imposes additional
punishment, and therefore does not constitute a conviction. 	As explained
below, we find that our decision in Matter of Rodriguez-Cortes is superseded
in light of Apprendi v. New Jersey. 	Consequently, we hold that any fact
(including a fact contained in a sentence enhancement) that serves to increase
the maximum penalty for a crime to which a defendant is subject and that is
required by the law in the convicting jurisdiction to be found beyond a
reasonable doubt by a jury, if not admitted by the defendant, is to be treated as
an element of the underlying offense. A conviction involving the application
of such an enhancement is therefore a “conviction” for the enhanced offense.
III. ANALYSIS
According to the respondent, his conviction is distinguishable from that in
Matter of Moncada, supra, because the “drug-free zone” aspect of the
conviction arises from an enhancement provision in Texas law that did not
require knowledge of possession in the drug-free zone, but merely the simple
fact that the possession occurred in such a protected zone. 	However, the
respondent’s argument is misplaced because our decision in Matter of
Moncada did not require knowledge to be an element of the offense. We held
instead that a conviction for possession of 30 grams or less of marijuana under
a statute requiring that the offense occur in a prison or other correctional
setting did not qualify for the exception to deportability under section
237(a)(2)(B)(i) of the Act because of the aggravating element of the location
of the possession offense, e.g., in prison.
The real issue in this case is whether the aggravating factor of possessing
the marijuana in a drug-free zone is distinguishable because that aggravating
circumstance takes the form under Texas law of a sentence enhancement rather
than a formal element of the underlying offense pled to by the respondent. In
order to answer this question, we must consider the impact of the recent series
of Supreme Court opinions addressing judicial fact-finding when imposing
sentences under the United States Constitution as they impact our decision.
In 2000, the Supreme Court rendered a landmark decision in modern
sentencing law in Apprendi v. New Jersey, supra. 	That case involved a
challenge to a sentence imposed in a State court by a defendant who was
convicted of a firearms violation that carried a prison term of a minimum of
5 to a maximum of 10 years. After the defendant’s guilty plea, the State of
New Jersey filed a motion to enhance the sentence under the State’s hate crime
statute, alleging that the defendant committed the offense to intimidate a
person or group because of racial animus. After finding by a preponderance
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of the evidence that the crime was racially motivated, the sentencing court
imposed a 12-year sentence, exceeding the maximum sentence under the
statute of conviction by 2 years. 	In deciding Apprendi, the Supreme Court
held that the Constitution requires that “[o]ther than the fact of a prior
conviction,1 any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Id. at 490.
Subsequently, the Supreme Court decided Blakely v. Washington, 542 U.S.
296 (2004), invalidating a sentence imposed under Washington’s sentencing
guidelines system. In that case, the State court sentenced the defendant to a
term of imprisonment more than 3 years above the 53-month statutory standard
range for his offense based on the court’s finding that the defendant had acted
with deliberate cruelty. According to the Washington sentencing guidelines
at the time, deliberate cruelty was a statutorily enumerated ground for
departing from the standard sentencing range, and Washington law required
an exceptional sentence to be based on factors other than those used in
computing the standard range. 	Because the defendant had not made
admissions supporting the sentencing court’s finding of deliberate cruelty, the
Supreme Court held that the judicial application of an enhanced range under
the Washington guidelines violated the defendant’s constitutional right to a
jury trial. Importantly, the Supreme Court made this finding despite the fact
that the sentence imposed did not exceed the statutory maximum penalty of
10 years. Id. at 303-04. But under the State’s sentencing laws, the sentence
had exceeded “the maximum sentence a judge may impose solely on the basis
of the facts reflected in the jury verdict or admitted by the defendant.” Id. at
303.
However, not all facts bearing on sentencing are required to be found
beyond a reasonable doubt as a result of 	Apprendi 	and 	Blakely. 	In
United States v. Booker, 543 U.S. 220 (2005), the Supreme Court made
determinations under the United States Sentencing Guidelines advisory,
thereby allowing such findings to continue to be made solely by Federal judges
under a preponderance of the evidence standard. 	Further, the States have
responded in various ways to Apprendi and Blakely, such that a careful
understanding of specific State law is needed to determine whether a particular
sentencing factor, if not admitted during the criminal proceedings, would be
The exception for prior convictions is derived from the Supreme Court’s holding in
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
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required to be found beyond a reasonable doubt by a jury.2 See Matter of
Lopez-Amaro, 20 I&N Dec. 668 (BIA 1993) (distinguishing Matter of
Rodriguez-Cortes, supra, and finding that the simple fact that a State statute
is an “enhancement” does not mean that it functions to exculpate an alien from
having been convicted of the enhancement factor where the State law required
the enhancement factor to be charged and proven to the jury).
In light of the foregoing, we now turn to the question whether the sentencing
enhancement in this case qualifies as an “element” of the respondent’s offense
such that he has been “convicted” of possession of marijuana in a drug-free
zone. Section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (2000),
defines the term “conviction” to mean
a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt
has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a finding of
guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.
As previously noted, the respondent was convicted of the offense of
possession of 2 ounces or less of marijuana in a drug-free zone. This arose as
a combination of his violation of Texas Health and Safety Code section
481.121(b)(1), a Class B misdemeanor, and the separate statutory “drug-free
zone” enhancement. According to section 481.121(a), “a person commits an
offense if the person knowingly or intentionally possesses a usable quantity of
marihuana,” 	and 	is 	guilty 	of 	a 	Class 	B 	misdemeanor 	under 	section
481.121(b)(1) “if the amount of marihuana possessed is two ounces or less.”
The respondent’s conviction under 481.121(b)(1) was enhanced to a Class A
misdemeanor under Texas Health and Safety Code section 481.134(f)(1), which
provides, in pertinent part, as follows:
An offense otherwise punishable under Section . . . 481.121(b)(1) is a Class A
misdemeanor if it is shown on the trial of the offense that it was committed:
(1) in, on, or within 1,000 feet of any real property that is owned, rented, or
leased to a school or school board or the premises of a public or private youth center
. . . .
The enhancement in this case subjected the respondent to an increased
punishment beyond the maximum allowed for a conviction under section
Apprendi v. New Jersey, supra, and its progeny focus on admissions by the defendant or
findings by a jury beyond a reasonable doubt. Offenses carrying maximum sentences of
6 months or less, however, are not required to be tried before a jury. See Lewis v. United
States, 518 U.S. 322 (1996).
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481.121(b)(1).3 According to Texas law in the wake of Apprendi, the “drug-
free zone” factor under section 481.134(f), if it is not admitted by the defendant
in the criminal case, must be found by a jury beyond a reasonable doubt.4 See
Harris v. State, 125 S.W.3d 45 (Tex. App. 2003). 	Further, Texas is a
jury-sentencing State, so the drug-free zone factor was required to be submitted
to the jury, absent admission by the defendant. See id.
Under these circumstances, we conclude that the drug-free zone factor in this
case constitutes the equivalent of an “element” of the respondent’s offense for
removal purposes, in accordance with Apprendi and its progeny. Under Texas
law, it increased the maximum punishment that the respondent could receive
beyond that which would be authorized solely by a finding of possession of no
more than 2 ounces of marijuana. Further, Texas law gave the respondent the
right to a jury determination on this issue, and, by virtue of Apprendi, the
prosecution was required to prove it to the jury beyond a reasonable doubt.
Moreover, because the drug-free zone factor is properly treated as an element
of the respondent’s offense, we conclude that the respondent has been
convicted of possession of marijuana in a drug-free zone, here a school-zone,
in accordance with section 101(a)(48)(A) of the Act. 	Consequently, our
decision in Matter of Rodriguez-Cortes, supra, is superseded with respect to
any post-Apprendi sentencing factor that is shown to have been found in
accordance with the criminal law protections of a jury trial and burden of proof
afforded a defendant in relation to the elements of an offense.5
Our decision in Matter of Rodriguez-Cortes, supra, comported with the
common understanding of the law as it existed at the time, and its holding on
the facts would remain the same in retrospect even under the rule set forth in
this case because of the structure of the sentencing scheme at issue in that case.
The holding in Matter of Rodriguez-Cortes also continues to apply in
pre-Apprendi sentencing determinations. 	However, in the aftermath of
3 According to section 12.22 of the Texas Penal Code, a Class B misdemeanor in Texas is
punishable by (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed
180 days; or (3) both such fine and confinement. Under section 12.21 of the Penal Code, a
Class A misdemeanor in Texas is punishable by (1) a fine not to exceed $4,000;
(2) confinement in jail for a term not to exceed 1 year; or (3) both such fine and confinement.
4 Compare section 481.134(c) of the Texas Health and Safety Code, which is not subject to
Apprendi in accordance with Harris v. United States, 536 U.S. 545 (2002), because it merely
increases the statutory minimum sentence but does not exceed the statutory maximum
sentence. See Williams v. State, 127 S.W.3d 442, 445 (Tex. App. 2004) (finding that section
481.134(c) does not create a separate offense because its only effect is to raise the penalty
when an enumerated offense is committed in a designated place); see also Uribe v. State, 573
S.W.2d 819 (Tex. Crim. App. 1978).
5 The respondent makes no claim that he was not afforded due process of law in connection
with his “drug-free zone” enhancement.
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Apprendi and its progeny, the holding in Matter of Rodriguez-Cortes is
superseded by the new rule applied in this case. Importantly, we point out that
Apprendi and its progeny do not encompass all sentence enhancements; the
Apprendi analysis will not result in all sentence enhancements being the
equivalent 	of 	“elements” 	of 	an 	offense. 	Rather, 	those 	post-Apprendi
enhancements that may still permissibly be found by a preponderance of the
evidence by a sentencing judge, including those under the United States
Sentencing Guidelines and many State sentencing schemes, will not be the
equivalent of an “element” of an offense. See, e.g., Cunningham v. California,
127 S. Ct. 856 (2007); Blakely v. Washington, supra; Ring v. Arizona, 536 U.S.
584 (2002). It is crucial that an examination of the specific statutory sentencing
scheme be conducted in order to make the determination. 	To equate to an
element it must be shown that, under the law of the convicting jurisdiction, a
sentencing factor had to be proved to a jury beyond a reasonable doubt if it was
not admitted by the defendant.6
In sum, because the sentence enhancement in this case serves as the
functional equivalent of an offense element for constitutional purposes under
Apprendi v. New Jersey, supra, we see no reason to distinguish between
instances in which an offense involving possession for one’s own use of a small
quantity of marijuana is elevated to a higher penalty level because of a formal
element in the statute of conviction relating to the location where the possession
takes place and situations where the increased penalty level is the result of a
similar protected location provision in the form of a sentence enhancement.
The respondent’s conviction for possession of marijuana, based on an
enhancement for possession in a drug-free zone, to which he pleaded nolo
contendere and was found guilty beyond a reasonable doubt, must be treated as
a conviction in the same manner as if the statute contained such enhancement
as a formal element. 	If the respondent had contested the “drug-free zone”
aspect, Apprendi and Harris v. State, supra, would have required submission
of that issue to a jury to be decided beyond a reasonable doubt.
IV. CONCLUSION
We find that Matter of Rodriguez-Cortes, supra, has been overtaken by legal
developments and is superseded in cases involving sentencing determinations
Thus, we will treat as an element any such factor where the convicting jurisdiction’s law
requires proof beyond a reasonable doubt to a jury, even if, under Apprendi, a State need not
have required proof by that standard. We have no occasion here to decide whether we would
treat as an element any such factor required by the convicting jurisdiction to be proved
beyond a reasonable doubt to a court rather than a jury. See Harris v. United States, supra;
see also Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004).
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made subsequent to the Supreme Court’s decision in Apprendi v. New Jersey,
supra. We agree with the Immigration Judge that Matter of Moncada, supra,
applies in this case and that the respondent was not convicted of a “simple
possession”offense within the meaning of section 212(h) of the Act because the
offense was committed in a drug-free zone. 	We therefore concur with the
Immigration Judge that the respondent is not eligible for a waiver under section
212(h) as a result of his conviction. Without a waiver, the respondent is not
eligible for adjustment of status because he is not admissible to the United
States. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
431