United States Court of Appeals For the First Circuit
No. 25-1278
JONALSON DOR,
Petitioner,
v.
PAMELA J. BONDI, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Thompson, and Montecalvo, Circuit Judges.
Ethan R. Horowitz, with whom Claire Maguire was on brief, for petitioner.
Andrew B. Insenga, Trial Attorney, Office of Immigration Litigation, with whom Sheri R. Glaser, Acting Assistant Director, Office of Immigration Litigation, and Brett A. Shumate, Assistant Attorney General, Civil Division, U.S. Department of Justice, were on brief, for respondent.
December 1, 2025 MONTECALVO, Circuit Judge. Petitioner Jonalson Dor
("Dor") seeks review of the Board of Immigration Appeals' ("BIA")
March 18, 2025 decision upholding his removal order. Dor's
petition concerns whether his August 2018 Massachusetts marijuana
conviction constitutes a "controlled substance" violation under
section 237(a)(2)(B)(i) of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1227(a)(2)(B)(i). That provision, in turn,
references the federal definition of a "controlled substance," as
defined by the Controlled Substances Act ("CSA") at 21 U.S.C.
§ 802.1
This appeal presents the following question: when
evaluating whether a noncitizen's state criminal conviction
renders them deportable for a controlled substance offense, must
courts refer to the definition of a controlled substance in the
1 Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (1970), as part of a sweeping effort to standardize the regulation of federally controlled substances. See Joanna R. Lampe, Cong. Rsch. Serv., R45948, The Controlled Substances Act (CSA): A Legal Overview for the 119th Congress 2 (2025). Title II of that Act contains the CSA. See id. The CSA defines a "controlled substance" at 21 U.S.C. § 802 as "a drug or other substance, or immediate precursor" that is included in one of its five drug schedules (schedules I to V), found in § 812. The INA provision at issue here references the CSA's "definitions" section, and therefore we refer mainly to CSA "definitions." See INA § 237(a)(2)(B)(i) (referencing 21 U.S.C. § 802). But we point out the distinction between these two sections because courts often refer to the CSA's drug definitions and its schedules interchangeably, as reflected in some sources cited in this opinion.
- 2 - CSA as the CSA existed at the time of the individual's conviction,
or at the time of their removal proceedings? For the following
reasons, we join the five other circuits to have considered this
question and adopt the rule that the relevant CSA definition is
the definition that existed at the time of conviction. Because
Dor's August 2018 Massachusetts marijuana conviction constitutes
a categorical match with the federal definition as it existed at
the time of his conviction, we deny Dor's petition.
I. Background
We begin by recounting how this appeal came before us,
drawing the facts from the administrative record. Adeyanju v.
Garland, 27 F.4th 25, 31 (1st Cir. 2022) (citing Martínez-Pérez v.
Sessions, 897 F.3d 33, 37 n.1 (1st Cir. 2018)).
A. Dor's August 2018 Massachusetts Marijuana Conviction
Jonalson Dor is a native and citizen of Haiti. He was
admitted to the United States as a lawful permanent resident on or
about April 23, 2007. On August 6, 2018, Dor pled guilty in state
court to possession of marijuana with the intent to distribute
under chapter 94C, section 32C(a) of the Massachusetts General
Laws.
B. December 2018 Amendment to the CSA
At the time of Dor's August 2018 conviction, both
Massachusetts law and the CSA included "hemp" in the definition of
- 3 - "marijuana."2 See Mass. Gen. Laws ch. 94C, § 1; 21 U.S.C. § 802(16)
(Supp. 2017). That changed when Congress amended the CSA,
effective December 2018, to exclude "hemp" from the "marijuana"
definition. Agriculture Improvement Act of 2018, Pub. L. No.
115-334, § 12619(a)(2)(B), 132 Stat. 4490, 5018 (codified as
amended at 21 U.S.C. § 802(16)).
C. Dor's Removal Proceedings
In 2019, the Department of Homeland Security ("DHS")
initiated removal proceedings against Dor, charging him as
removable under section 237(a)(2)(B)(i) of the INA for having been
convicted of a controlled substance violation. DHS based that
charge, initially, on two of Dor's marijuana offenses from 2016.
An immigration judge ("IJ") ordered Dor removed, and on
appeal, the BIA upheld that order on the grounds that Dor's 2016
marijuana convictions constituted "particularly serious crimes"
that made him ineligible for relief. See Dor v. Garland, 46 F.4th
38, 41-42 (1st Cir. 2022). In 2022, he sought our review for the
first time in Dor v. Garland, challenging the BIA's decision. See
id. We granted Dor's petition and remanded to the BIA for
proceedings consistent with our opinion. Id. at 42.
2The Massachusetts statute refers to this substance as "marihuana," while the federal definition refers to both "marihuana" and "marijuana." For consistency throughout this opinion, we refer to this substance as "marijuana."
- 4 - Since then, Dor's 2016 marijuana convictions have been
vacated, and the parties agree that those convictions are not at
issue in this appeal. But Dor's legal battle continued, when on
March 13, 2023, DHS amended its charges of removability against
Dor. It added his 2018 Massachusetts marijuana conviction as the
new basis for Dor's alleged removability on the same controlled
substance grounds as before.
Following that amendment, Dor sought to terminate his
removal proceedings. In a November 15, 2023 motion before the
Boston Immigration Court, Dor argued that he was not removable
because the sole conviction now sustaining removability -- his
August 2018 Massachusetts marijuana conviction -- did not
constitute a controlled substance offense as defined in the CSA.
He applied the "categorical approach," an analysis which compares
state and federal law to determine whether there is a "categorical
match."3 Dor argued that the Massachusetts definition of
marijuana, which included some forms of "hemp," was broader than
the federal definition, which did not criminalize "hemp" at all.4
In broad terms, a categorical match exists if the federal 3
law at issue encompasses the "least culpable conduct" criminalized by the state statute of conviction. See Boulanger v. United States, 978 F.3d 24, 28 (1st Cir. 2020) (explaining the categorical approach in a sentencing enhancement case). But if the state statute criminalizes more conduct than the federal law, it is considered "overbroad" and therefore not a categorical match. 4Before the IJ, Dor noted that Massachusetts defined marijuana to exclude "industrial hemp as defined in section 116 of chapter 128" of the Massachusetts General Laws. (Citing Mass.
- 5 - Because his Massachusetts statute of conviction covered substances
that the CSA did not, Dor argued that there was no categorical
match, and thus DHS could not sustain its charge of removability.
In support of his motion, Dor included the CSA's definitions at
21 U.S.C. § 802 as an exhibit, which indicated that the federal
"marijuana" definition did not include "hemp." Dor did not
explicitly argue for the IJ to consider the version of the CSA in
effect at the time of his removal proceedings, rather than an
earlier version. Yet by referring to the version that was
effective at the time he moved to terminate proceedings, in
practice, he applied a time of removal approach.
The IJ disagreed with Dor's arguments. In its July 11,
2024 denial of Dor's motion to terminate, the immigration court
concluded that the applicable federal drug schedule was the one in
place at the time of a noncitizen respondent's criminal
conviction.5 The IJ found, as it pertained to marijuana, that the
Massachusetts drug schedule was a categorical match with the
federal drug schedule that existed at the time of Dor's August
Gen. Laws ch. 94C, § 1) (emphasis added). Because section 116 defines both "hemp" and "industrial hemp," Dor argued that non-industrial hemp was "criminalized under [his] statute of conviction," and therefore overbroad compared to the CSA, which did not criminalize hemp in any form. 5 As discussed, supra note 1, this is an instance where a court referred to the drug schedules when discussing a change in the definitions of those drugs.
- 6 - 2018 conviction. The IJ therefore concluded that DHS had sustained
the charge of removability and ordered Dor removed.
Dor timely appealed to the BIA. On March 18, 2025, the
BIA determined that the IJ properly decided Dor's removability and
dismissed his appeal. It agreed "that the time of conviction [was]
the relevant point" for determining removability for a controlled
substance offense, noting that the four appeals courts to have
addressed the issue had adopted the same approach.6 The Board
reasoned that it traditionally considered the time of
conviction -- and not the "current state of the criminal law when
a case comes before us in the course of (often protracted)
immigration proceedings" -- when determining immigration
consequences of crimes. It expressed concern over the "serious
notice and retroactivity problems" implied by Dor's time of removal
rule, which it noted would make immigration consequences for state
convictions "unpredictable and unfixed in time." And finally, it
rejected Dor's "one-way ratchet" argument aimed at assuaging those
retroactivity concerns. Under this approach, the time of removal
rule would apply "except when doing so would cause detriment to
the respondent or defy his reliance-based expectations,"
functioning as a "one-way ratchet." This, the Board reasoned,
6Just one day after the BIA's March 18, 2025 decision, the United States Court of Appeals for the Eighth Circuit became the fifth circuit court to adopt the time of conviction rule. See Salinas v. Bondi, 131 F.4th 840, 845-46 (8th Cir. 2025).
- 7 - "misconstrued the problem," which was "one of statutory
interpretation, not policy." It concluded that the time of
conviction rule offered an "alternative interpretation that
pose[d] far fewer retroactivity problems."
II. Standard of Review
In our review of immigration agency decisions, we
"typically focus[] on the final decision of the BIA." Ferreira v.
Garland, 97 F.4th 36, 45 (1st Cir. 2024) (alteration in original)
(quoting Loja-Tene v. Barr, 975 F.3d 58, 60 (1st Cir. 2020)). But
"to the extent that the BIA deferred to or adopted the IJ's
reasoning," we also review those parts of the IJ's decision. Id.
at 46 (quoting Chavez v. Garland, 51 F.4th 424, 429 (1st Cir.
2022)); see also Bonilla v. Mukasey, 539 F.3d 72, 76 (1st Cir.
2008). "We review the agency's legal conclusions," like the one
presented here, "de novo." Espinoza-Ochoa v. Garland, 89 F.4th
222, 230 (1st Cir. 2023).7
7 In Espinoza-Ochoa, we also explained that under de novo review, we give "some deference to [an agency's] interpretations of statutes and regulations related to immigration matters." 89 F.4th at 230 (quoting Aldana-Ramos v. Holder, 757 F.3d 9, 14 (1st Cir. 2014)). Here, the parties have raised no questions about deference to agency interpretations. See Fleurimond v. Bondi, 157 F.4th 1, 5 n.1 (1st Cir. 2025). We therefore do not address potential implications, if any, of Kisor v. Wilkie, 588 U.S. 558 (2019), or Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024). See id.
- 8 - III. Discussion
To evaluate removability under section 237(a)(2)(B)(i)
of the INA for individuals convicted of state drug crimes, we
employ the categorical approach, comparing the state statute of
conviction with the federal CSA to determine if there is a
categorical match.8 See Swaby, 847 F.3d at 65-66. This case
requires us to clarify which version of the CSA controls when using
the categorical approach. The parties present us with two
alternatives. Dor argues that we must refer to the CSA in effect
at the time of the noncitizen's removal proceedings. The
government, in contrast, contends that the CSA as it existed at
the time of the noncitizen's criminal conviction controls. We
refer to these proposed approaches as the "time of removal rule"
and the "time of conviction rule."
A. The Parties' Arguments
Dor's arguments center on the purpose and text of section
1751 of the Anti-Drug Abuse Act of 1986. Through section 1751,
which we refer to as "the 1986 Amendments," Congress amended the
nation's immigration laws by incorporating the CSA by reference
into the INA. In so doing, Dor asserts that Congress replaced a
And where the state offense includes "several different 8
crimes, each described separately," we apply the modified categorical approach. See Swaby v. Yates, 847 F.3d 62, 67 (1st Cir. 2017) (quoting Mellouli v. Lynch, 575 U.S. 798, 805 n.4 (1980)). For a brief description of the modified categorical approach, see infra note 11.
- 9 - static list of controlled substances with the CSA, "a list . . .
designed to be periodically expanded (or reduced) by federal law
enforcement." Through its explicit choice to cross-reference a
dynamic drug schedule to the INA, Dor argues that Congress
"signaled to immigration courts that they should not rely on a
fixed list of controlled substances when adjudicating the adverse
consequences of a controlled-substance conviction, but rather
should apply the version of the Act 'in effect at the time the
cross-referenced provision was needed.'" (Quoting Brown v. United
States, 602 U.S. 101, 126 (2024) (Jackson, J., dissenting).)
Building on this congressional intent argument, Dor
contends that the text of the 1986 Amendments further supports his
time of removal rule. Subsection (b) incorporated the CSA into
the INA, and in so doing, "expanded the universe of
controlled-substance convictions" with adverse immigration
consequences. And subsection (c), Dor argues, made this expansion
effective retroactively. See Anti-Drug Abuse Act of 1986, Pub. L.
No. 99-570, § 1751(c), 100 Stat. 3207, 3207-47 ("The amendments
made by the subsections (a) and (b) of this section shall apply to
convictions occurring before, on, or after the date of the
enactment of this section."). Dor argues that by enacting this
retroactively effective expansion, Congress linked the negative
immigration consequences of a controlled substance conviction to
- 10 - the CSA's evolving drug schedules "irrespective of the temporal
relationship between the noncitizen's conviction and the [CSA]."
Finally, Dor argues that the circuit courts that have
adopted the time of conviction rule misinterpreted the 1986
Amendments and their impact on the INA. Dor acknowledges these
courts' concerns about "unforeseeable immigration consequences"
if, following a noncitizen's conviction, the federal drug
schedules are expanded to include substances that did not
previously implicate removability. Yet he argues that these
concerns are misplaced. Despite Congress' clear retroactive
intent at the time it enacted the 1986 Amendments, Dor argues that
it is "less clear" that Congress intended such retroactivity "to
continue for years into the future."
For the first time at oral argument, in advocating for
this "one-way ratchet," Dor drew parallels to the sentencing
enhancements context. He pointed to United States v. Abdulaziz,
998 F.3d 519 (1st Cir. 2021), arguing that, when applying an
enhancement, this court evaluated a criminal defendant's
culpability and dangerousness at the time of sentencing (not the
time of commission or conviction of the crime triggering the
enhancement). He contends that we should similarly evaluate a
noncitizen's culpability implicating removal at the time of their
removal proceedings.
- 11 - The government begins its arguments with the text of
section 237(a)(2)(B)(i) of the INA. It maintains that the
statutory text alone does not indicate which version of the CSA
controls -- a point that Dor does not contest.
The government then focuses on how the time of conviction
rule aligns with the categorical approach and its purpose of
promoting fairness, efficiency, and predictability. The
government argues that Dor's time of removal rule raises fairness
and notice concerns because noncitizen criminal defendants subject
to this rule could later become removable for conduct that did not
implicate removability at the time they entered a plea agreement
or were adjudicated guilty.
The government finds support in the "unanimous trend"
across the five circuit courts that have adopted the time of
conviction rule. (Citing Doe v. Sessions, 886 F.3d 203, 209-10
(2d Cir. 2018); Salinas v. Bondi, 131 F.4th 840, 845-46 (8th Cir.
2025); Medina-Rodriguez v. Barr, 979 F.3d 738, 749 (9th Cir. 2020);
Gordon v. U.S. Att'y Gen., 962 F.3d 1344, 1351 n.4 (11th Cir.
2020); Martinez v. Att'y Gen., 906 F.3d 281, 287 (3d Cir. 2018).)
It especially relies on Doe v. Sessions, where the Second Circuit
addressed the importance of fair notice and effective assistance
of counsel, and reasoned that removability should not "be based on
fortuities concerning the timing of the petitioner's removal
- 12 - proceedings or [Drug Enforcement Administration] rulemaking." 886
F.3d at 210.
The government rejects Dor's "future" retroactivity
argument (that Congress did not intend to impose immigration
consequences retroactively for "decades into the future" when
changes to the CSA newly implicate negative immigration
consequences). It argues that Congress enacted the 1986 Amendments
nearly forty years ago, "long before any incident in this case,"
and therefore this change "is not being applied retroactively."
Finally, the government argues that by failing to
clarify which specific moment in time to use when applying the
time of removal rule, Dor did not provide a workable standard.
The government maintains that multiple conceivable moments could
be utilized, such as when DHS issues a Notice to Appear ("NTA"),
an IJ issues a removal order, the BIA issues its decision, or
removal itself occurs, demonstrating the confusion that arises
under this rule. Dor addressed this issue for the first time at
oral argument. He proposed the issuance of the charging document
that initiates removal proceedings -- the NTA -- as the appropriate
moment in time under the time of removal rule. Because Dor raised
this proposal only at oral argument, the government did not engage
with it.
- 13 - B. Analysis
We begin, as we must, with the text of the statute at
issue. Section 237(a)(2)(B)(i) of the INA makes a noncitizen
deportable for "ha[ving] been convicted of a violation of . . .
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)."9 As discussed, 21 U.S.C. § 802 is the
definitions section of the CSA. The government argues that the
text of section 237(a)(2)(B)(i) does not clarify which version of
the CSA to apply. Dor does not explicitly contest this10 and even
acknowledges that "the statutory text offers no meaningful clue as
to [c]ongressional intent on this question." Thus, as a threshold
matter, we will assume -- without deciding -- that the text of
section 237(a)(2)(B)(i) alone does not resolve our question.
Next, we examine Dor's contention that congressional
intent as expressed in the 1986 Amendments should inform our
reading of section 237(a)(2)(B)(i). As mentioned, Dor posits that
by incorporating the CSA's "dynamic" drug schedules into the INA,
9The statute provides an exception when the noncitizen only has a "single offense involving possession for one's own use of 30 grams or less of marijuana." INA § 237(a)(2)(B)(i). 10Rather than making a textual argument about section 237(a)(2)(B)(i), Dor contends that Congress' intent, as expressed in its 1986 Amendments, instructs us to read this removability provision as referencing the CSA at the time of a noncitizen's removal proceedings.
- 14 - Congress aimed to synchronize immigration and controlled substance
policies, and to signal that the CSA in effect "at the time of a
noncitizen's removal proceeding" governs removability. But that
intent is not self-evident, and Dor's argument is unavailing.
Though Congress made the 1986 Amendments applicable "to
convictions occurring before, on, or after the date" of their
enactment, that decision does not bear on the operative question
regarding which version of the CSA governs our analysis. While
Congress was clear that the 1986 Amendments apply to prior
convictions, it was silent about which version of the CSA controls.
Thus, we see no reason to read into the 1986 Amendments an intent
that the CSA controlled substance definitions at the time of
removal must govern the analysis. Additionally, the "dynamic"
nature of the CSA that Dor highlights does not direct an outcome
here. Changes to the CSA are no less relevant under the time of
conviction rule than under the time of removal rule. In other
words, whether courts look to the CSA at the time of a noncitizen's
conviction or at the time of their removal, outcomes may vary for
different individuals under either rule because of the evolving
nature of the CSA.
We now turn from the text of the statute to case law.
In Mellouli v. Lynch, the Supreme Court held that the petitioner
was not removable on controlled substance grounds where it was
"immaterial" under his Kansas statute of conviction whether the
- 15 - possessed substance was defined in the CSA schedules. 575 U.S. at
801. In the present case, the government points to the Court's
statement that "[a]t the time of Mellouli's conviction, Kansas'
schedules included at least nine substances not included in the
federal lists" as support for its time of conviction rule.
(Quoting Mellouli, 575 U.S. at 802 (emphasis added).) And our
sister circuits have as well. See, e.g., Martinez, 906 F.3d at
287 (referencing Mellouli's "at the time of [his] conviction"
language (alteration in original) (emphasis omitted)). For
example, in Doe v. Sessions, the Second Circuit cited this same
language to support its understanding that the Supreme Court had
"previously assumed" that removability "depend[ed] on whether a
state drug schedule sweeps more broadly than the CSA [s]chedules
in force" at the time of conviction. 886 F.3d at 208 (citing
Mellouli, 575 U.S. at 808); see Medina-Rodriguez, 979 F.3d at 748
(noting that in Mellouli, "the Supreme Court had assumed that the
federal drug schedule at the time of conviction determined
removability").
Although Mellouli informs our analysis, the question
that we face was not squarely before the Supreme Court. See
Abdulaziz, 998 F.3d at 530. The Court had "no occasion to
consider" which version of the CSA schedules to apply because
"neither party . . . contended that the federal drug schedules had
expanded or contracted in any material way between the time of
- 16 - Mellouli's 2010 Kansas conviction and his removal proceedings in
2012." Id. (emphasis omitted) (discussing Mellouli). In fact, we
have previously observed that the Court's own citation in Mellouli
in support of its conclusion "that some of the substances on the
2010 Kansas schedules were 'not included in the federal lists'"
relied on Drug Enforcement Administration documents "from 2013"
-- well after Mellouli's 2010 Kansas conviction. Id. (quoting
Mellouli, 585 U.S. at 802).
Although Mellouli's passing reference to the
petitioner's time of conviction provides only limited instruction,
we are persuaded -- as our sister circuits have been -- that its
broader discussion of the categorical approach has import here.
See 575 U.S. at 806. As the Court observed, "[r]ooted in Congress'
specification of conviction, not conduct, as the trigger for
immigration consequences, the categorical approach is suited to
the realities of the system." Id. By requiring courts to evaluate
"what a conviction necessarily established" under the language of
the statute, and disallowing examination of the underlying facts,11
"the categorical approach ordinarily works to promote efficiency,
fairness, and predictability in the administration of immigration
11 The modified categorical approach, in contrast, allows limited consideration of the facts insofar as courts "may determine which particular offense the noncitizen was convicted of" by examining certain specified documents, such as the charging document, jury instructions, and, where applicable, plea agreement and colloquy. See Mellouli, 575 U.S. at 805 n.4.
- 17 - law." Id. at 806; see also Moncrieffe v. Holder, 569 U.S. 184,
200-01 (2013) (acknowledging that, by precluding "relitigation of
past convictions," the categorical approach "promotes judicial and
administrative efficiency").
This predictability allows noncitizen criminal
defendants "to anticipate the immigration consequences of guilty
pleas" and make informed decisions about "safe harbor" pleas that
minimize their risk of removability. See Mellouli, 575 U.S. at
806 (citation omitted). If a court evaluating removability uses
the CSA at the time of removal proceedings as its point of
comparison, however, such predictability disappears. See
Medina-Rodriguez, 979 F.3d at 748. As the Second Circuit explained
in Doe, if that were the case, it would be "impossible" to
"anticipate the immigration consequences of a guilty plea or
conviction at trial at the point when [the government and
noncitizen] must determine how to proceed with the criminal case."
886 F.3d at 209. A noncitizen criminal defendant could enter a
supposed safe harbor plea to a state statute that, at the time of
their plea, was overly broad compared to the CSA and therefore did
not implicate removability. See id. at 209-10. "But if the CSA
[s]chedules were later expanded to encompass the same drugs as the
state statute," that same individual "could then become removable
by the time removal proceedings commenced." Id. at 210.
- 18 - At the key moment when a noncitizen must decide how to
proceed in their criminal case, then, the time of removal rule
provides no real way to anticipate immigration consequences. But,
in Padilla v. Kentucky, the Supreme Court held that the Sixth
Amendment right to counsel requires criminal defense attorneys to
inform noncitizen clients whether their "plea carries a risk of
deportation." See 559 U.S. 356, 366, 374 (2010); see also Hinds
v. Lynch, 790 F.3d 259, 262 (1st Cir. 2015). As we acknowledged
in United States v. Castro-Taveras, the Padilla decision
overturned a "prevalent rule" across circuit courts, including
ours, "that deportation consequences [did] not implicate the Sixth
Amendment right to counsel" because deportation was considered
only a "collateral consequence[] of a criminal proceeding." 841
F.3d 34, 38 (1st Cir. 2016). By overturning that rule, Padilla
clarified the rights and obligations of noncitizen criminal
defendants and their defense attorneys. Dor's proposed time of
removal rule would hinder defense attorneys from providing
meaningful counsel to noncitizens about the advisability of plea
deals, particularly with respect to deportation risks. Because
this rule threatens to run afoul of binding precedent in Padilla,
we disfavor it.
Ultimately, we cannot support an interpretation that
could attach new legal consequences -- including removal from this
country -- to conduct that did not implicate such dire
- 19 - repercussions at the time of an adjudication of guilt. Although
Dor contends that our concerns about retroactive adverse
immigration consequences are misplaced, we are unconvinced.12
Because the government's time of conviction rule instead provides
"maximum clarity" at the pivotal moment when a noncitizen must
assess if "pending criminal charges may carry a risk of adverse
immigration consequences," we join the Second Circuit and all our
sister circuits and adopt that rule. See Doe, 886 F.3d at 210
(quoting Padilla, 559 U.S. at 369).
IV. Conclusion
For the foregoing reasons, when evaluating whether a
noncitizen is subject to removal for a controlled substance
conviction under section 237(a)(2)(B)(i) of the INA, we consider
the CSA as it existed at the time of the noncitizen's conviction.
Because the Massachusetts definition of marijuana was a
categorical match with the federal definition at the time of Dor's
August 2018 conviction, we deny his petition.
12In advocating for a "one-way ratchet" to address our retroactivity concerns, as mentioned, for the first time at oral argument, Dor pointed to our decision in Abdulaziz for support. See 998 F.3d 519 (1st Cir. 2021). He attempted to draw parallels between our time of sentencing rule in the sentencing enhancements context and his proffered time of removal rule in the immigration removal context. See id. Because it is "a well-settled principle that arguments not raised by a party in its opening brief are waived," and lacking briefing to engage with this issue properly, we deem this argument waived. See United States v. Mayendía-Blanco, 905 F.3d 26, 32 (1st Cir. 2018).
- 20 -