In re Navarro Guadarrama
| Citation | 27 I&N Dec. 560 |
| Decision Date | 11 June 2019 |
| Docket Number | Interim Decision #3956 |
| Parties | Matter of Jesus Gabriel NAVARRO GUADARRAMA, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
27 I&N Dec. 560
Matter of Jesus Gabriel NAVARRO GUADARRAMA, Respondent
Interim Decision #3956
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
June 11, 2019
Where an alien has been convicted of violating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establish a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), reaffirmed.
FOR RESPONDENT: David Stoller, Orlando, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Maria T. Armas, Assistant Chief Counsel
BEFORE: Board Panel: MALPHRUS, MANN, and KELLY, Board Members.
MANN, Board Member:
In a decision dated August 2, 2018, an Immigration Judge determined that the respondent is removable under sections 212(a)(2)(A)(i)(II), (6)(A)(i), and (7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), (6)(A)(i), and (7)(A)(i)(I) (2012), as an alien who was convicted of a controlled substance violation, is present in the United States without being admitted or paroled, and is not in possession of a valid entry document. Finding that the respondent is ineligible for a waiver of inadmissibility under section 212(h) of the Act, the Immigration Judge denied his application for adjustment of status and ordered him removed from the United States. The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of Mexico. In 2005 and 2010, he was convicted of possession of less than 20 grams of marijuana in violation of section 893.13(6)(b) of the Florida Statutes. On the basis of these two convictions, the Immigration Judge found that the respondent is inadmissible
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under section 212(a)(2)(A)(i)(II) of the Act.1 Because the respondent was convicted of more than a "single offense of simple possession of 30 grams or less of marijuana," the Immigration Judge determined that he is ineligible for a section 212(h) waiver and, consequently, for adjustment of status.
Under section 212(a)(2)(A)(i)(II) of the Act, an alien who has been convicted of a violation of a State law "relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))" is inadmissible. The respondent argues that he is not inadmissible under that section because the definition of cannabis (commonly referred to as marijuana) under Florida law is broader than the Federal definition.
At the time of the respondent's convictions, marijuana, which was a schedule I controlled substance under 21 U.S.C. § 812 (2000), was defined as
all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
21 U.S.C. § 802(16) (2000) (emphasis added).2
Like the Federal statute, Florida once defined "cannabis" to exclude "the mature stalks of the plant." Purifoy v. State, 359 So. 2d 446, 447 (Fla. 1978) (quoting Fla. Stat. § 893.02(2) (1975)). However, in 1978, the Florida Supreme Court quashed a conviction for possession of more than 5 grams of
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marijuana where the defendant possessed "an aggregation of prohibited cannabis and non-prohibited 'mature (plant) stalks' weigh[ing] 7.05 grams." Id. In response, the Florida Legislature amended its laws to redefine the term "cannabis" in section 893.02(3) as
all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.
(Emphasis added.)3
The respondent has the burden to establish that he is not inadmissible. Section 240(c)(2)(A) of the Act, 8 U.S.C. § 1229a(c)(2)(A) (2012); 8 C.F.R. § 1240.8(c), (d) (2018). Arguing that Florida law defines cannabis more broadly than 21 U.S.C. § 802(16), the respondent asserts that the statutes are not a categorical match and, therefore, that he has not been convicted of a controlled substance violation within the meaning of section 212(a)(2)(A)(i)(II) of the Act. However, the fact that some incongruity exists between the Federal and Florida laws is not dispositive.
To show that a State statute prohibits conduct outside the generic definition of an offense in a Federal statute, an alien must establish that there is "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see also Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). We have held that "even where a State statute on its face covers a . . . [controlled] substance not included in a Federal statute's generic definition, there must be a realistic probability that the State would prosecute conduct falling outside the generic crime in order to defeat a charge of removability." Matter of Ferreira, 26 I&N Dec. 415, 420-21 (BIA 2014). Thus, an alien can establish that he is not removable based on a conviction for a State drug offense if he can show that in either his own case or other cases, the State court actually applied the statute to an offense involving a substance that is not federally
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controlled. Id. at 422 (citing Duenas-Alvarez, 549 U.S. at 193); see also Matter of Mendoza Osorio, 26 I&N Dec. 703, 706 n.2 (BIA 2016).
With respect to his own case, the respondent does not claim that his Florida possession convictions were for a substance that is outside the Federal definition of marijuana at 21 U.S.C. § 802(16). In fact, he admits that his convictions were based on pleas of guilty or nolo contendere to possession of marijuana and were in conjunction with convictions for possession of drug paraphernalia. There is no basis to believe that the substances he possessed were marijuana stalks, sterilized seeds, or other derivatives that are not federally controlled. Moreover, since separate stalks and stems are of no value to a drug user, it is unlikely that the respondent would possess such substances along with drug paraphernalia.
The respondent has also not presented any cases where a defendant was successfully prosecuted under Florida law for an offense that involved only a form of marijuana that was not prohibited by 21 U.S.C. § 802(16). We are also not aware of any, and the change in the Florida law makes such prosecutions even more unlikely. We are 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.
Notwithstanding the actual application of section 893.02(3) of the Florida Statutes, however, the respondent argues that the plain language of the statute itself establishes a realistic probability that the State would prosecute conduct that falls outside the Federal definition of marijuana. In support of this contention, the respondent relies on a decision of the United States Court of Appeals for the Eleventh Circuit, in whose jurisdiction this case arises. Ramos v. U.S. Att'y Gen., 709 F.3d 1066 (11th Cir. 2013). In that case, the court found that Duenas-Alvarez does not require a showing that the State would prosecute conduct falling outside the Federal definition of the crime "when the statutory language itself, rather than '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." Id. at 1072 (quoting Duenas-Alvarez, 549 U.S. at 193).
The decision in Ramos predates the Supreme Court's ruling in Moncrieffe, where the Court stated that to successfully "defeat the categorical comparison" under the realistic probability test, a party "would have to demonstrate that the State actually prosecutes the relevant offense." Moncrieffe, 569 U.S. at 206 (emphasis added). Moreover, a majority of the Eleventh Circuit sitting en banc subsequently declined to follow Ramos's understanding of the realistic probability doctrine. United States v. Vail-Bailon, 868 F.3d 1293, 1295 (11th Cir. 2017) (en banc), cert. denied, 138 S. Ct. 2620 (2018) (mem.).
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In that case, the Eleventh Circuit considered whether the offense of felony battery under Florida law is a crime of violence under the United States Sentencing Guidelines. The defendant proffered several hypothetical scenarios, claiming that an offender could be prosecuted under the Florida statute for conduct involving only the minimal use of force in his effort to demonstrate that the statute "flunks the physical force test." Id. at 1305. However, a majority of the court found his argument to be "[c]ontrary to every Florida court that has considered the issue," noting that "the real-world examples of Florida felony battery [it was] aware of all involve conduct that clearly required the use of physical force." Id. at 1305-06.
The Eleventh Circuit relied on the realistic probability test in Moncrieffe and Duenas-Alvarez to reject the defendant's "farfetched hypotheticals." Id. at 1306. It found "no support in Florida law for the idea that [the statute] is designed to criminalize the conduct...
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