BIA Amicus Invitation No. 18-02-27: "Conviction for Possession of a Controlled Substance in Florida”

Introduction

On February 27, 2018, the Board of Immigration Appeals (BIA) issued Amicus Invitation No. 18-02-27, titled “Conviction for Possession of a Controlled Substance in Florida” [PDF version]. The Amicus Invitation invites members of the public to file amicus curiae (friend of the court) briefs in response to three issues presented by the Board. The deadline for responding is March 29, 2018. In this post, we will briefly examine the questions.

Issues Presented

Below are the issues presented in Amicus Invitation 18-02-27:

The issues present three distinct questions regarding a pair of Florida statutes. We will examine each issue in turn.

Issue 1

Issue 1 deals with the language of Fla. Stat. 893.13(6)(a). The statute reads as follows:

A person may not be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. A person who violates this provision commits a felony in the third degree, punishable as provided in [section 775.082, section 775.083, or section 775.084].

The Board's question notes that fact that the language of section 893.13(6)(a) does not require that an offender know of the illicit nature of the substance that he or she illegally possesses. In other words, knowledge of the illicit nature of the substance is not an “element” of the offense, meaning something that must be proven or pled to in order to sustain a conviction.

Granting that knowledge of the illicit nature of a controlled substance is not an element of section 893.13(6)(a), the Board has requested briefs on whether the statute “categorically” defines a violation relating to a controlled substance under the inadmissibility provision in section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (INA) and the deportability provision in section 237(a)(2)(B)(i) of the INA [see article]. In short, the question is whether all conduct proscribed by Florida Statute 893.13(6)(a) — including possession without knowledge of the illicit nature of the substance possessed — is covered by the “relating to” a controlled substance provisions in the INA. If that is the case, then any conviction in violation of the Florida statute is necessarily a violation “relating to” a controlled substance under the INA. If that is not a case, then the statutes are not a categorical match because the Florida statute covers some conduct that falls under the INA provisions and some conduct that is outside of their scope.

Finally, the Board asked for amici to address the same question in light of its published decision in Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014) [PDF version]. In Matter of L-G-H-, the Board held that sale of a controlled substance in violation of Fla. Stat. 893(1)(a)(1) was categorically an aggravated felony “illicit trafficking” offense under section 101(a)(43)(B) of the INA, despite the fact that knowledge of the illicit nature of the substance was not an element of the offense. However, the Board noted in that decision that section 893(1)(a)(1) of the Florida Statutes “requires knowledge of [the substance's] presence and includes an affirmative defense for ignorance of its unlawful nature…” Thus, the Board is looking for briefs addressing the relevance of Matter of L-G-H- to the instant case.

Issue 2

The second question concerns section 893.03(2)(a) of the Florida Statutes. This provision lists Schedule II controlled substances under Florida law. The question presented by the Board is whether the definition of “cocaine” in section 893.03(2)(a) refers to the same thing as the definition provided for cocaine in the federal controlled substance schedules.

If the Florida definition of cocaine is coextensive with the Federal definition, than offenses involved with cocaine are covered by sections 212 and 237 of the INA. This is because the INA incorporates the Federal controlled substance schedules for its definition of what constitutes a controlled substance. An affirmative answer on this point would moot not only the rest of Issue 2, but also the main point of Issue 3.

However, in the event one finds that the Florida definition of cocaine differs from the Federal definition, the Board has asked for follow-up analysis. First, it asked, “what is the import of any difference in these definitions?” What the Board is likely looking for here is analysis on whether the difference is such that the Florida definition of cocaine encompasses substances that are not covered by the Federal schedules. Second, the Board asked for an analysis of whether any differences are “clearly evident from the Florida statute's text.”

Although not cited in the Amicus Invitation, the Supreme Court decision in Mellouli v. Lynch, 135 S.Ct 1980 (2015) [PDF version] [see article], provides an example of the implication of differences in State and Federal controlled substance schedules in the immigration context. In Mellouli, an individual was convicted under Kansas law of possessing drug paraphernalia. He was charged as deportable under section 237(a)(2)(B)(i). By a 7-2 majority, the Supreme Court held that Mellouli's conviction was not covered by section 237(a)(2)(B)(i) because the Kansas controlled substance schedules encompassed several controlled substances that were not included in the Federal schedules. As a result, the Kansas statute covered some conduct that falls under the INA provision and some conduct that is outside of their scope.

Issue 3

The third issue follows from the second. Here, the Board asked for amici to address a question that would follow from the conclusion that the Florida definition of cocaine is not coextensive with the Federal definition. The Board asked amici to address whether the “Florida statute [is] divisible as to the nature of the controlled substance such that the application of the modified categorical approach is appropriate?”

In order for a statute to be “divisible,” it must set forth multiple distinct offenses in the alternative. Regarding section 893.03(2)(a) of the Florida Statutes, the question is thus whether the specific substance is an element of the offense — that is — something that would have to be proven or pled guilty to in order to sustain a conviction. If the statute is divisible with respect to the substance involved, then a difference between the Florida and Federal definitions of cocaine may not be dispositive. For example, if it was necessary to prove which type of cocaine was involved in the offense in order to sustain a conviction under the statute, then that could be determinative as to whether a conviction involved a controlled substance for purpose of the INA.

Please see a series of articles addressing the categorical and modified categorical approaches to learn about how these concepts interact with immigration law [see article].

Conclusion

Amicus Invitation No. 18-02-27 presents several questions that could have far-reaching implications beyond their application to the facts of the specific case in Florida. In the event that the Board issues a published decision on the issues, we will write about it on site.