Chamu v. U.S. Attorney Gen.

23 F.4th 1325

Solomon CHAMU, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 19-13908

United States Court of Appeals, Eleventh Circuit.

Filed: January 26, 2022

Sui Chung, Immigration Law & Litigation Group, Miami, FL, Michael S. Vastine, St. Thomas University School of Law, Miami Gardens, FL, for Petitioner.

Micah Engler, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, Timothy G. Hayes, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Michelle M. Ressler, District Counsel's Office, USICE, Miami, FL, for Respondent.

Before Branch, Grant, and Brasher, Circuit Judges.

Grant, Circuit Judge:

Mexican national Solomon Chamu entered the United States without inspection and subsequently committed several crimes. When the government eventually placed him in removal proceedings, he applied for cancellation of removal—a form of discretionary relief that allows otherwise removable persons a chance to stay in the country. But that limited relief is unavailable to anyone convicted of an offense "relating to a controlled substance" as defined by federal law. 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i). And one of the offenses that Chamu had committed was cocaine possession under Florida law.

Chamu argues that his conviction does not bar cancellation because Florida's cocaine possession statute covers more conduct than its federal counterpart and is therefore not "related to" a federally controlled substance. He offers two reasons this is true: first, the state's definition of cocaine extends to substances not prohibited under federal law, and second, Florida's possession law does not require knowledge that the substance is illegal. We disagree. Because Chamu has not met his burden of showing that Florida's cocaine statute covers more substances than the federal statute, his conviction prevents cancellation of removal.

I.

Chamu was born in Mexico and entered the United States without inspection in 1990. Thirteen years later, he was arrested for and pleaded guilty to cocaine possession under Florida Statute § 893.13(6)(a). And fourteen years after that, he was ordered to appear in a removal proceeding. See 8 U.S.C. § 1182(a)(6)(A)(i). Chamu conceded that removal was proper. But he also applied for cancellation of his removal, alleging that his mother and children would suffer exceptional hardship if it were carried out.

Cancellation is a form of discretionary relief allowing certain immigrants who are otherwise removable, but who also have an exceptional reason to remain in the United States, to do so. See 8 U.S.C. § 1229b(b). Good behavior is an essential prerequisite to this relief. One limitation is for drug crimes; cancellation is unavailable for those who have been convicted of a state offense "relating to a controlled substance (as defined in section 802 of title 21)" of the United States Code. 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i). Section 802, in turn, defines "controlled substance" as any substance included in one of five federal controlled substance schedules. 21 U.S.C. § 802(6). A conviction of an offense "relating to" one of those controlled substances makes an alien ineligible for cancellation of removal. See 8 U.S.C. §§ 1229b(b)(1)(C).

Recognizing that his Florida cocaine possession conviction would pose a problem for his cancellation request, Chamu attempted to have it vacated in state court while his application was pending before an immigration judge. After that strategy predictably failed, Chamu shifted his approach, arguing that the Florida statute was too broad to bar his cancellation request because Florida considers some substances to be cocaine that the federal government does not. He also claimed that the Florida statute was too broad because it covered more states of mind than its federal counterpart—that is, the Florida possession statute alone presumes that a defendant knows a possessed substance is illegal, whereas federal law requires proof of knowledge. The immigration judge rejected Chamu's contentions and found him ineligible for cancellation.

With a declaration from a chemistry expert in hand, Chamu repeated his overbreadth argument in front of the Board of Immigration Appeals, placing particular weight on the textual differences between the state and federal statutory definitions of cocaine. He also repeated his mens rea argument.

The Board dismissed Chamu's appeal. It accepted for the sake of argument that his expert's declaration was accurate, and thus that the Florida and federal definitions of cocaine weren't a perfect match. But it concluded that the mismatch made no difference. To prevail, Chamu needed to show "a realistic probability, not a theoretical possibility," that the Florida statute covered more than its federal counterpart. See Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). And while Chamu might have shown a theoretical difference in statutory scope, the Board concluded that he had not shown a realistic probability that the Florida statute would be enforced more broadly. The Board also concluded that the federal statutes at issue contained no mens rea requirement. Chamu petitions for review of the Board's decision.

II.

We review questions of law raised in a petition for review of a Board of Immigration Appeals decision de novo. 8 U.S.C. § 1252(a)(2)(D) ; Choizilme v. U.S. Att'y Gen. , 886 F.3d 1016, 1022 (11th Cir. 2018). But we review the Board's findings of fact for substantial evidence, meaning that we must affirm the Board's findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Kazemzadeh v. U.S. Att'y Gen. , 577 F.3d 1341, 1351 (11th Cir. 2009) (quotation omitted). We consider only issues the Board actually reached, and because the Board did not expressly adopt the immigration judge's decision or rely on its reasoning, we review only the Board's decision. See Gonzalez v. U.S. Att'y Gen. , 820 F.3d 399, 403 (11th Cir. 2016).

III.

Chamu is ineligible for cancellation if he has been convicted of an offense relating to a controlled substance banned under federal law. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i). He admits that in 2003 he was convicted of a violation of Florida's cocaine possession statute. See Fla. Stat. § 893.13(6)(a). The only path open to him, then, is to show that his conviction was not for an offense "relating to a controlled substance" as federally defined.

We apply the categorical approach in comparing the Florida and federal offenses. That means we do not consider the facts specific to Chamu's conviction. See Kawashima v. Holder , 565 U.S. 478, 483, 132 S.Ct. 1166, 182 L.Ed.2d 1 (2012). Instead, we look "to the statute defining the crime of conviction" to decide whether convictions under the state statute "necessarily entail" the conduct that triggers federal immigration consequences. Id. ; Shular v. United States , ––– U.S. ––––, 140 S. Ct. 779, 784, 206 L.Ed.2d 81 (2020) (quotation omitted). If a conviction under the Florida cocaine possession statute always relates to a federally controlled substance—that is, if the substances proscribed by the Florida law are all federally controlled substances—then the state conviction triggers immigration consequences. Cf. Kawashima , 565 U.S. at 483–85, 132 S.Ct. 1166.

Chamu argues that Florida's cocaine possession statute fails this test in two ways. First, it defines cocaine too broadly; and second, it presumes that the possessor knows that a possessed substance is illegal. Both arguments fall short.¹

A.

We begin with the definition of cocaine. Chamu's argument rests on the difference in statutory language between Florida's definition of cocaine and the federal definition. The crux of the matter is that the two statutes refer to different types of cocaine isomers. Isomers, as we will address in more detail later, are chemical compounds that share a formula but are differently structured. Florida's cocaine definition includes one subset of isomers: "any of [cocaine's] stereoisomers." Fla. Stat. § 893.03(2)(a)(4) (2003). The federal definition, at least on its face, describes another: cocaine's "optical and geometric isomers." 21 U.S.C. § 812(c), Sched. II(a)(4) (2003).

The Supreme Court has made clear that litigants who contend that state statutes are broader than their federal analogues must come prepared. They cannot simply apply "legal imagination to a state statute's language" and hope to prevail. Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815. A relevant difference exists only when there is "a realistic probability, not a theoretical possibility," that the State would apply its statute to conduct that does not meet the federal standard. Id. The simplest way for an offender to show that realistic probability is to point to a case in which the state statute was used to prosecute such conduct. See id.

Chamu offers no sample prosecution here—but that is not the only way forward, at least in this Circuit. We explained in Ramos v. U.S. Attorney General that an offender need not produce a sample prosecution "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." 709 F.3d 1066, 1072 (11th Cir. 2013) (quotations omitted). Ramos thus allows a litigant to use facially overbroad statutory text to meet the burden of showing the realistic probability that the state law covers more conduct than the federal. But it does not lift the burden entirely; a litigant still must show that any textual differences carry actual legal consequences. When state and federal statutes "do not diverge to any significant degree"—that is, when a state statute with "different terminology" is nonetheless "no broader than the federal standard"...