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.”
But would the State of Florida really prosecute someone for possession of mature marijuana stalks? That is the question the Immigration Judge and Board of Immigration Appeals asked. That’s because the courts have developed something called the “Reasonable Probability” test. If a state statute is broader than a federal statute, the litigant must show that the State would actually prosecute someone for violating the broader portion of the statute. So, for example, in Mr. Said’s case, he would have to show that someone in Florida had actually been prosecuted for possessing or selling mature marijuana stalks. Because Mr. Said didn’t, or couldn’t, provide the Immigration Judge or Board of Immigration Appeals with any cases where someone was prosecuted in Florida for possession of mature marijuana stalks, the Immigration Judge decided that his Florida possession of marijuana conviction did qualify as a controlled substance as defined under federal law and the BIA upheld that decision.
The Eleventh Circuit reversed the BIA and held that Mr. Said did not have to present a case where Florida prosecuted someone for possession of mature marijuana stalks because the Florida statutory language itself showed that there was a realistic probability that the State would prosecute someone for possession of mature stalks. In including the term stalk and other like terms, the statute is clear and unambiguous in its design to criminalize the possession or sale of mature marijuana stalks. Therefore, the Florida definition of marijuana is broader than the federal definition and there is a realistic probability that Florida would prosecute someone for violating the broader portion of the statute.
So, if the Florida definition of marijuana is broader than the federal definition, what does that mean for Mr. Said? Did Mr. Said possess marijuana or just the mature stalks? If Mr. Said possessed marijuana and not just mature marijuana stalks, wouldn’t that qualify under the federal definition? How does this help him? Well, the Court used something called the “categorical approach,” which means that they don’t look at the facts of the case. They look only at the statutory language. The statute either qualifies as a whole or not at all. So, because Fla. Stat. §893.02(3) is broader than 21 U.S.C. §802(16), it doesn’t matter whether Mr. Said possessed mature stalks or any other part of the marijuana plant. The facts of any individual case are not relevant to the analysis.
The Eleventh Circuit’s decision now calls into question any marijuana conviction arising out of the state of Florida. According to this decision, a Florida marijuana conviction should not serve as a controlled substance basis for inadmissibility or deportability. It also should not stop the accrual of the requisite time needed to apply for cancellation of removal. However, a marijuana conviction can still lead to loss or denial of DACA and/or TPS. With any new court decision that dramatically affects a legal issue, there are sure to be many court cases to follow that further flesh out the impact of this particular decision. For example, will a Sale of Marijuana be considered a crime involving moral turpitude, which could be a separate basis for inadmissibility and/or deportability.
These are all issues that immigration lawyers will be keeping a close eye on. For any non-citizen with a pending marijuana case or a prior marijuana conviction, call an immigration attorney to discuss how that conviction affects your immigration status.
Jeremy Lasnetski is a partner at the Law Offices of Lasnetski Gihon Law. The firm focuses on immigration, criminal defense and personal injury. Mr. Lasnetski focuses his practice on immigration and criminal defense and is the former Jacksonville Regional Vice Chair of the American Immigration Lawyer’s Association, Central Florida Chapter. He has represented clients in deportation proceedings, USCIS benefit cases, consular processing cases, and more. He routinely gives presentations on immigration law issues to both criminal and immigration lawyers at conferences and seminars throughout the State of Florida.