Today, the Eleventh Circuit released what looks like may be a landmark decision in Said v. U.S. Atty Gen’l. This court opinion affects all non-citizens who have or will have Florida marijuana convictions. Under §212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, any alien who commits a violation of any state law or regulation relating to a controlled substance, as defined in 21 U.S.C. §802, is inadmissible. Under §237(a)(2)(B), any alien who at any time after admission has been convicted of a violation of any law or regulation of a State…relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana is deportable. So, prior to this decision, most non-citizens with marijuana convictions were deportable and/or inadmissible with the only possible exception being for a single possession of 30 grams of marijuana or less.
But in order for a marijuana conviction to qualify as a deportable offense or a crime of inadmissibility, marijuana, as defined under Florida law must qualify as a controlled substance, as defined under Federal law in 21 U.S.C. §802. And that is exactly what the Eleventh Circuit analyzed in Said. In Said, the Court looked at the definition of marijuana (or cannabis, as it is referred to in the Florida Statute) in Fla. Stat. §893.02(3) and the definition of marijuana under Federal law in 21 U.S.C. §802(16) to determine whether they were a match.
The Eleventh Circuit determined that the Florida definition of marijuana is broader than the federal definition. Florida includes the mature stalk of the marijuana plant in its definition. Federal law does not. Therefore, a person could be convicted of a marijuana offense in Florida that involved only the mature stalk of the plant. However, that same person could not be convicted under Federal Law. So, it appears that a violation of Florida’s law relating to a controlled substance (marijuana) is not “as defined in 21 U.S.C. §802.”