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.
These decisions will effect the potential immigration consequences for Fla. Stat. § 893.13(6), simple possession of a controlled substance, § 893.13(1), sale, manufacture, delivery, and possession with intent to sell, manufacture or deliver a controlled substance, § 893.135, trafficking in a controlled substance, § 893.13(3), delivery of cannabis without consideration and less than 20 grams, and § 893.147, possession of drug paraphernalia.
In this first part of a multi-part blog, I will analyze the history and current state of the federal immigration laws as they relate to non-citizens convicted of controlled substance offenses in Florida.
Just three years ago, a non-citizen who was convicted of any of these crimes would likely have been detained, placed in removal (deportation) proceedings and for most of these convictions, barred from any form of relief form removal. My, how things have changed since 2013.
The first landmark decision that changed the playing field for non-citizens convicted of controlled substance offenses was the Eleventh Circuit’s decision in Donawa v. U.S. Att’y Gen., 735 F.3d 1275 (11th Cir. 2013). A bit of immigration law background is needed to understand the significance of the decision in Donawa.
In immigration law a conviction for an aggravated felony is about the worst thing you can be accused of as a non-citizen. One of the worst aggravated felonies relates to a conviction for an illicit trafficking in a controlled substance, INA § 101(a)(43)(B). There are two ways to prove someone was convicted of an aggravated felony under INA § 101(a)(43)(B); the “illicit trafficking clause” and the “drug trafficking crime” clause. See Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010).
For years, the Immigration Courts had found that convictions for sale, manufacture, delivery, possession with intent to sell, manufacture or deliver and trafficking were all aggravated felonies. This meant that non-citizens convicted of these crimes in Florida were subject to mandatory detention, deportation and barred from almost every form of relief. A conviction for these crimes almost guaranteed deportation.
Then things changed with the Donawa decision. In that opinion, the Eleventh Circuit, which has federal jurisdiction over Florida, said that no Florida conviction under Fla. Stat. § 893.13(1) can qualify as a “drug trafficking crime” because the Florida legislature eliminated the knowledge of the illicit nature of the controlled substance element of the crime in 2002. See Donawa, 735 F.3d 1275. This reasoning also extends to trafficking convictions under § 893.135.
The Donawa Court left open the possibility that a conviction for sale, manufacture, delivery, possession with intent or trafficking could still be an aggravated felony, but it slammed the door on the ease with which the Government had been proving these charges and deporting people because of them.
The Eleventh Circuit in Donawa initially left open the question of whether or not the Department could prove that a conviction under Fla. Stat. § 893.13(1) (and § 893.135) could be an aggravated felony under the “illicit trafficking clause” method for proving an INA § 101(a)(43)(B) aggravated felony. However, the Board of Immigration Appeals’ decision in Matter of L-G-H- answers that question.
Stay tuned next week for part two where we explore the effect of the Board’s decisions in Matter of L-G-H- and others 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 Lasnetski Gihon Law and passionate about crimmigration law.

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