On June 11, 2019, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent found removable by an Immigration Judge (IJ) for a controlled substance conviction, being present without admission or parole, and not possessing a valid entry document. Because the IJ held respondent is ineligible for an INA §212(h) waiver, the court denied his application for adjustment of status (AOS) and ordered him removed. This appeal followed.
Respondent had been convicted twice of violating section 893.13(6)(b) of the Florida Statutes for processing less than 20 grams of marijuana; the IJ thus found him inadmissible under INA§(a)(2)(A)(i)(II) as one was convicted of violating a state law “relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)”; because respondent was convicted of more than “a single offense of simple possession of 30 grams or less of marijuana”, the IJ found him ineligible for the §212(h) waiver and AOS.
The BIA began its analysis by noting respondent’s appellate argument that he is not inadmissible because the Florida law is overbroad, i.e., the state definition of marijuana is broader than the federal one. Essentially, the federal statute, in defining marijuana, excludes the “mature stalks” of the cannabis plant while the Florida statute, which had once tracked the federal definition, has been amended to redefine the term to include all parts of any cannabis plant. Because the statutes are no longer a categorical match, respondent asserted that “he was not been convicted of a controlled substance violation within the meaning of section 212(a)(2)(A)(i)(II)”. However, the Board stated that the fact that some incongruity exist between the two laws “is not dispositive.”
The BIA then set forth the rule that even where a state statute contains a controlled substance not included in a federal statute’s generic definition, there must be a realistic probability, not a theoretical possibility, that the state would apply the statute to conduct involving a substance that falls outside of the federal definition, e.g. one that is not federally controlled, citing to and quoting Matter of Ferreira, 26 I & N Dec. 415, 420-21 (BIA 2014). In the instant case, noted the decision, respondent did not claim on appeal that his Florida possession convictions were for a substance outside the federal definition of marijuana. Nor had he presented any cases (nor was the Board aware of any) where a defendant “was successfully prosecuted under Florida law or an offense that involved only a form of marijuana” not prohibited by the federal statute. The BIA was therefore unpersuaded that there “is a realistic probability that Florida would prosecute a person under section 893.13(6)(b) for possession of less than 20 grams of a form of marijuana that is not federally controlled.”
The Board acknowledged respondent’s reliance on Ramos v U.S. Attny Gen. 708 F.3d (11th Cir.2013) for the proposition that the plain language of the statute itself establishes a realistic probability of prosecution for conduct falling outside of the federal definition of marijuana, noting that decision held that such a realistic probability is not required when the statutory language, not “the application of legal imagination” to that language, creates the realistic probability that a state would apply the statute to conduct beyond the generic definition. The BIA, however, found both 1) that Ramos predated Moncrieffe v. Holder, 569 U.S. 184 (2013), the U.S. Supreme Court case which held that to successfully defeat the categorical comparison of the realistic probability test, one must demonstrate that the state actually prosecutes the relevant offense, and 2) that the Eleventh Circuit (where this case arose) had refused to follow Ramos’ approach to the realistic probability doctrine. In fact, stated the Board, the Eleventh Circuit currently requires “that actual examples be identified to demonstrate that a statute falls outside the generic definition of the crime at issue.”
The BIA thus reaffirmed its decision in Ferreira, which had relied on Moncrieffe, holding that where one has been convicted of violating a state drug statute that includes a controlled substance not found on the federal schedules, he or she must establish a realistic probability that the state would actually apply the law’s language to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction; this approach is to be applied in any circuit “that does not have binding legal authority requiring a contrary interpretation.” The opinion justified this finding by stating that without the application of the realistic probability test, the categorical approach “would sweep away the immigration consequences for many more offenses than it already does.” This approach, opined the Board, is based on Supreme Court precedent and is eminently reasonable, as it promotes fairness and consistency by ensuring that respondents in different states face the same immigration consequences for drug-related convictions.
Here, the instant respondent had two controlled substance convictions. While the Board admitted it was “theoretically possible” that Florida might apply its statute to forms of marijuana not found in the federal definition, no realistic probability of such a prosecution had been shown and there was no proof the state had successfully done so. As respondent was convicted of more than one controlled substance crime, he is ineligible for an INA §212(h) waiver and is, therefore, unable to establish eligibility for AOS. As he remains inadmissible under §212(a)(2)(A)(i)(II), the appeal was dismissed. Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019).