Said v. U.S. Attorney General

28 F.4th 1328

Fuad Fares Fuad SAID, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 21-12917

United States Court of Appeals, Eleventh Circuit.

Filed: March 24, 2022

David H. Stoller, Law Offices of David Stoller, PA, Orlando, FL, for Petitioner.

Allison Frayer, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Richard Kelley, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, Washington, DC, Michelle M. Ressler, District Counsel's Office, MIAMI, FL, for Respondent.

Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

Fuad Fares Fuad Said seeks review of the Board of Immigration Appeals’ ("BIA") final order affirming the Immigration Judge's ("IJ") denial of his application for cancellation of removal. He argues that he satisfied his burden of demonstrating his eligibility for cancellation of removal for certain lawful permanent residents because his violation of Fla. Stat. § 893.13(6)(a) did not relate to a controlled substance, as defined in 21 U.S.C. § 802, and, thus, did not prevent him from accruing the necessary seven-year period of continuous residence.

When the BIA issues a decision, we review only that decision, except to the extent that the BIA expressly adopts the IJ's decision or agrees with the IJ's reasoning. Gonzalez v. U.S. Att'y Gen. , 820 F.3d 399, 403 (11th Cir. 2016). We review the BIA's legal determinations de novo . Delgado v. U.S. Att'y Gen. , 487 F.3d 855, 860 (11th Cir. 2007) ; see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842–44, 104 S. Ct. 2778, 2781–83, 81 L.Ed.2d 694 (1984) (noting that deference applies only "[w]hen a court reviews an agency's construction of the statute which it administers").

Under INA § 240A, a petitioner is eligible for discretionary cancellation of removal if he has resided continuously in the United States for at least seven years after having been admitted for permanent residence for at least five years and has not been convicted of an aggravated felony. INA § 240A(a), 8 U.S.C. § 1229b(a). Pursuant to INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1), any period of continuous residence or physical presence in INA § 240A(a), 8 U.S.C. § 1229b(a), ends when the alien has committed one of several offenses specified in INA § 212(a)(2), 8 U.S.C. § 1182(a)(2). Section 212(a) provides that 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. INA § 212(a)(2)(A)(i)(II); 8 U.S.C. § 1182(a)(2)(A)(i).

Federal law defines marijuana as:

[A]ll 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. [Marijuana] 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) (emphasis added). Florida law defines marijuana 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." Fla. Stat. § 893.02(3) (emphasis added).

We apply the categorical approach to determine whether a state conviction constitutes an offense relating to a controlled substance. Chamu v. U.S. Att'y Gen. , 23 F. 4th 1325, 1329 (11th Cir. 2022). That means we do not consider the facts specific to Said's conviction. Id. 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. If a conviction under the Florida marijuana 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. Id. ; see also Guillen v. U.S. Att'y Gen. , 910 F.3d 1174, 1185 (11th Cir. 2018) (holding that § 893.13(6)(a) is divisible by the identity of the substance involved).

The Supreme Court has made clear that litigants who contend that state statutes are broader than their federal analogues cannot simply apply "legal imagination to a state statute's language" and hope to prevail. Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S. Ct. 815, 822, 166 L.Ed.2d 683 (2007). 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 that falls outside the generic definition of a crime." 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. Chamu , 23 F. 4th at 1330. However, in Ramos v. U.S. Att'y Gen. , we rejected the government's argument that the offender must always "point to a case," reasoning that " Duenas–Alvarez does not require this showing 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, 1071-72 (11th Cir. 2013) (quotation marks omitted).

After Ramos , in Moncrieffe v. Holder , the Supreme Court held that, according to "the everyday understanding of ‘trafficking,’ " violation of a Georgia statute punishing the possession of marijuana with intent to distribute did not constitute "illicit trafficking in a controlled substance" and, thus, an "aggravated felony." 569 U.S. 184, 194-95, 206, 133 S. Ct. 1678, 1693, 185 L.Ed.2d 727 (2013). Before concluding, the Court addressed the government's concern that convictions under state firearms laws lacking antique-firearm exceptions would fail the categorical inquiry. Id. at 205, 133 S. Ct. 1678. It noted that "a noncitizen would have to demonstrate that the State actually prosecutes the relevant offense in cases involving antique firearms," citing Duenas-Alvarez . Id. at 206, 133 S. Ct. 1678. We later categorized this part of Moncrieffe as dicta and expressed "doubts that requiring exemplar prosecutions in cases involving obviously overbroad language makes sense" without deciding whether such dicta was controlling. Aspilaire v. U.S. Att'y Gen. , 992 F.3d 1248, 1255 (11th Cir. 2021).

In United States v. Vail-Bailon , we held that, by its plain terms and according to Florida caselaw interpreting such terms, Florida's felony battery statute categorically matched the Guidelines’ definition of a "crime of violence." 868 F.3d 1293, 1303 (11th Cir. 2017) (en banc ). We further concluded that the defendant's farfetched hypothetical examples¹ of overbreadth did not change our holding. Id. at 1305-06 ; see also Pierre v. U.S. Att'y Gen. , 879 F.3d 1241, 1252 (11th Cir. 2018) (holding that, because the Florida offense of knowingly causing a child to come into contact with certain bodily fluids, "[b]y its plain terms," constituted a crime involving moral turpitude, the petitioner's failure to provide any exemplar cases precluded overbreadth, despite the petitioner's hypothetical of expelling urine on a child's jellyfish sting).

In Matter of Navarro Guadarrama , the BIA held that the alien's convictions for possession of marijuana in violation of § 893.13(6)(a) constituted violations of state law relating to a controlled substance, as defined in § 802. 27 I. & N. Dec. 560, 568 (BIA 2019). It reasoned that "the fact that some incongruity exists between the Federal and Florida laws is not dispositive." Id. at 562. Then, citing Duenas-Alvarez and Matter of Ferreira , 26 I. & N. Dec. 415 (BIA 2014), the BIA stated that, even if a state statute is facially overbroad, the alien must show that in either his own case or other cases that the state court "actually applied the statute to an offense that is not federally controlled." Id. at 562-63. It also relied on the notion that Moncrieffe and Vail-Bailon rejected Ramos ’ understanding of the realistic probability doctrine. Id. at 563-64. In a footnote, the BIA noted that the stated purpose of Florida's expansion of the definition of marijuana was "to facilitate law enforcement's determination of the precise weight of a controlled substance by eliminating the time-consuming need for drug labs to separate the prohibited part of the cannabis plant from the stalks and stems, which are of no drug value to the user." Id. at 562 n.3.

More recently, in Chamu , however, we reiterated 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.’ " Chamu , 23 F. 4th at 1330 (quoting Ramos , 709 F.3d at 1072 ). Thus, a litigant can use facially overbroad statutory text to meet the burden of showing the realistic probability that the state law covers more conduct than the federal. Id. Nonetheless, 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—no realistic probability of broader prosecution exists. Id. Different words alone are not enough. Id. Consequently, in Chamu , we held that, although Florida's definition of cocaine covered a type of stereoisomer that some chemical compounds have and that the federal definition did not cover, this difference between the...