During the last few years, many federal courts have set their sites on Florida statutes that regulate controlled substances. The U.S. Supreme Court, U.S. Court of Appeals for the Eleventh Circuit and Board of Immigration Appeals have all handed down decisions that have a direct effect on the immigration consequences of convictions in Florida for a variety of controlled substance offenses.
In this second part of my multi-part blog, I will analyze two decision from the Board of Immigration Appeals, one published and one not, that provide a great guide for removability as it relates to Fla. Stat. § 893.13(1), sale, manufacture, delivery, and possession with intent to sell, manufacture or deliver a controlled substance, and § 893.135, trafficking in a controlled substance.
If you remember from my first blog in this series, the U.S. Court of Appeals for the Eleventh Circuit in the Donawa decision left open the possibility that a conviction for sale, manufacture, delivery, possession with intent or trafficking could still be an aggravated felony. The Board of Immigration Appeals answered that question in Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014). The Board went even further in limiting the negative immigration consequences for a conviction under §§ 893.13(1) and 893.135 in an unpublished case known as Matter of M-B-, (BIA Sept 25, 2014).
The Board in L-G-H- held that in order to be an aggravated felony under INA § 101(a)(43)(B) (illicit trafficking) a Florida conviction must involve the following three elements: (1) a felony under the laws of the State of Florida; (2) the unlawful trading or dealing of a substance; and, (3) the substance at issue is a federally controlled substance. See L-G-H-, 26 I&N Dec. at 368-69.
This means that if a person is convicted of a crime under Fla. Stat. §§ 893.13(1) and 893.135 and the drug is not a federally controlled substance (which many Florida controlled substances are not), then the conviction cannot be an aggravated felony for immigration purposes. Also, if the offense does not involve an element of “trading or dealing,” then it also cannot be an aggravated felony.
Both Fla. Stat. §§ 893.13(1) and 893.135 involve crimes that have an element of trading or dealing (sale) and crimes that do not (manufacturing, delivering, possessing with the intent to manufacture or deliver and trafficking based upon simple possession of a large amount of a controlled substance).
After the Board’s decision L-G-H-, there were only two possible ways that a Florida conviction under either Fla. Stat. §§ 893.13(1) and 893.135 would be aggravated felonies. That is if they involved the actual sale of a controlled substance (simple sale or trafficking sale) or arguably possession with intent to sell.
In Matter of M-B-, (BIA Sept 25, 2014), the Board decided that even the crime of possession of a controlled substance with the intent to sell it does not contain a commercial element of “trading or dealing” and therefore it could not be an aggravated felony illicit trafficking offense.
After this line of cases, is it clear that there are only two offenses under Florida law that would constitute an aggravated felony illicit trafficking in a controlled substance offense: 1) sale of a federally controlled substance – Fla. Stat. § 893.13(1) and 2) sale of a trafficking amount of a federally controlled substance – Fla. Stat. § 893.135.
Stay tuned next week for part three where we explore the effect of the U.S. Supreme Court’s recent decision in Mellouli v. Lynch, 575 U.S. ___ (2015) on the immigration consequences of a Florida controlled substance conviction.
John Gihon is Board Certified in Immigration and Nationality Law by the Florida Bar. John is a partner with the law offices of Shorstein, Lasnetski & Gihon and passionate about crimmigration law.