BIA Reaffirms Realistic Probability Test For Determining Whether Drug Conviction is an Immigration Offense

 

Introduction: Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019)

On June 11, 2019, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019) [PDF version]. The Board considered a case where an alien was convicted of violating a State drug statute that included at least one controlled substance that was not on the Federal controlled substances schedules. The Board concluded that in order for an alien to establish that the conviction was not for a drug offense as defined by the Immigration and Nationality Act (INA), the alien must establish a “realistic probability” that the State would actually apply the statute to prosecute conduct involving the substance not included in the Federal schedules. In so doing, the Board reaffirmed its prior precedent in Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014) [PDF version].

In this article, we will examine the factual and procedural history of Matter of Navarro Guadarrama and the Board's analysis and conclusions.

Factual and Procedural History of Matter of Navarro Guadarrama: 27 I&N Dec. 560, 560-61

The respondent, a native and citizen of Mexico, was twice convicted — in 2005 and 2010 — of possession of less than 20 grams of marijuana in violation of section 893.13(6)(b) of the Florida Statutes. The Department of Homeland Security (DHS) charged the respondent with three grounds of inadmissibility, including under section 212(a)(2)(A)(i)(II) of the INA for “a violation of … any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” On the basis of the multiple drug convictions, the Immigration Judge determined that the respondent was ineligible for a waiver of inadmissibility under section 212(h) of the INA and ordered him removed from the United States. The respondent appealed from the decision to the BIA.

Issue

In order to be rendered inadmissible for a drug offense, the alien's violation must be relating to a “controlled substance.” The INA incorporates the Federal drug schedules — set forth in 21 U.S.C. 802 — for its definition of a “controlled substance.” Thus, if an alien is convicted of a State drug offense, the conviction must be relating to a federally controlled substance. The instant case concerns a situation where the statute of conviction also included certain substances that are not on the Federal schedules.

Relevant Statutes at Time of Convictions: 27 I&N Dec. 560, 561-62

At the time of both the respondent's 2005 and 2010 convictions for violating section 893.13(6)(b) of the Florida Statutes, marijuana was a schedule I controlled substance under Federal law. The relevant Federal statute, 21 U.S.C. 812 (2000), defined marijuana 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); (Excerpted with emphasis added at Matter of Navarro Guadarrama, 27 I&N Dec. at 561.)

At the time of the respondent's convictions, however, Florida law under section 893.02(3) of the Florida Statutes defined “cannabis” as including “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” (quotation excerpted and emphasis added by the Board). Thus, the Florida definition of cannabis is broader than the Federal definition in that the Florida statute includes “any part” of the cannabis plant whereas the Federal definition excludes the stalks of cannabis plants.

The Board noted that the Florida statutes had previously excluded the stalks of cannabis plants from the definition of cannabis. After a 1978 decision wherein the Florida Supreme Court concluded that, under previous law, the stalks of a cannabis plant could not be counted toward the total weight of cannabis possessed by an individual for a separate criminal statute, Florida broadened its definition of cannabis to include the stalks. See; Purifoy v. State, 359 So. 2d 446, 447 (Fla. 1978) [PDF version].

In a footnote to its decision, the Board stated that the stated purpose of the statutory change “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.” The Board found that “[n]othing in Florida law suggests that there was any intent to criminalize forms of marijuana that are not also federally controlled.”

Respondent Failed to Satisfy Burden of Proof: 27 I&N Dec. 560, 562-63

Because the respondent was charged as an inadmissible alien, he bore the burden of proof of establishing that he was not inadmissible under section 240 (c)(2)(A) of the INA and 8 C.F.R. 1240.8(c), (d). We discuss the burden of proof for establishing no inadmissibility in detail in a separate post [see article]. Thus, the burden rested with the respondent to establish that he was not inadmissible due to his two Florida marijuana convictions.

The respondent noted that Florida law defined “cannabis” more broadly than did Federal law. He asserted that the Florida definition was categorically overbroad with regard to the Federal definition. For this reason, he argued that his Florida marijuana convictions were not controlled substances offenses as defined in section 212(a)(2)(A)(i)(II) of the INA because the immigration provision relies upon the narrower Federal definition of “controlled substance.”

The Board, however, explained that “the fact that some incongruity exists between the Federal and Florida laws is not dispositive.” Instead, the Board cited to the decision of the Supreme Court of the United States in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) [PDF version], wherein the Court held that in order for an alien to establish that an overbroad State statute prohibits conduct outside of the Federal statute, the alien must establish that there is “a realistic probability, not a theoretical possibility, that the State would apply the statute to conduct that falls outside the generic definition of the crime.” The Board noted that the Court cited to this same language in Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) [PDF version], which dealt with whether a State statute was an aggravated felony trafficking in controlled substances offense.

For its part, the Board held in Matter of Ferreira, 26 I&N Dec. at 420-21 (BIA 2014), 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.” The Board summarized its rule from Matter of Ferreira: “[A]n 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 controlled.” The Board's standard, as articulated in Matter of Ferreira, relied upon its reading of Duenas-Alvarez.

In the instant matter, the Board noted that the respondent did not argue that his Florida marijuana possession convictions were for a substance outside of the Federal definition of marijuana. The Board explained that the respondent instead admitted “that his convictions were based on pleas of guilty or nolo contendere [(no contest)] to possession of marijuana and were in conjunction with convictions for possession of drug paraphernalia.” Based on the factual record and the respondent's own admissions, the Board concluded that “[t]here is no basis to believe that the substances [the respondent] possessed were marijuana stalks, sterilized seeds, or other derivatives that are not federally controlled.” The Board noted that “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.”

Regarding the respondent's burden of proof under Matter of Ferreira, the Board noted that the respondent failed to present an example of a single case where a criminal defendant in Florida was successfully prosecuted for an offense that involved only a form of marijuana prohibited under Florida law but not under Federal law. The Board added that it was not aware of any such cases that had not been presented by the respondent. The Board added that “the change in the Florida law makes such prosecutions even more unlikely.” For these reasons, the Board held that it was “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.”

Board Reaffirms “Realistic Probability” Standard Against Respondent's Challenge: 27 I&N Dec. 560, 563-68

The respondent argued that the Board should not inquire into whether there was a realistic probability that Florida would use his statute of conviction — section 893.02(3) of the Florida Statutes — to prosecute conduct that fell outside the Federal definition of marijuana.

Since the instant matter arose within the jurisdiction [see article] of the United States Court of Appeals for the Eleventh Circuit, the respondent endeavored to show the Board that its inquiry was constrained by Eleventh Circuit precedent. To this effect, the respondent cited to Ramos v. Att'y Gen., 709 F.3d 1066, 1072 (11th Cir. 2013) [PDF version], wherein the Eleventh Circuit held that Duenas-Alvarez did not require a showing that an overbroad State statute would proscribe conduct outside the ambient of the pertinent Federal statute “when the statutory language itself, rather than 'the application of legal imagination' to the language, creates the 'realistic probability' that a state would apply the statute to conduct beyond the generic definition.” (Ramos, quoting Duenas-Alvarez, 549 U.S. at 193.) The Board, however, found the respondent's reliance on Ramos to be unavailing. The Board noted that Ramos was decided prior to the Supreme Court's decision in Moncrieffe, 569 U.S. at 206, which the Board described as holding the following: “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.'” Moreover, the full Eleventh Circuit itself had subsequently declined to follow Ramos's view on the realistic probability doctrine in United States v. Vail-Bailon, 868 F.3d 1293, 1295 (11th Cir. 2017) (en banc) [PDF version].

The Board explained that Vail-Bailon “considered whether the offense of felony battery under Florida law is a crime of violence under the United States sentencing guidelines.” A “crime of violence” under the United States sentencing guidelines involves the use of physical force. The Eleventh Circuit concluded that the defendant's arguments for why the Florida statute of conviction did not involve the use of physical force were unconvincing. The Board discussed what it considered to be the pertinent part of Vail-Bailon, 868 F.3d at 1305-06: “[A] majority of the [Eleventh Circuit] found [the defendant's] 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.'” The respondent in the instant matter noted the dissenting opinion in Vail-Bailon, which took the position that the language of the Florida battery statute itself created a realistic probability that the statute could be used to prosecute offenses not involving the use of physical force. Thus, the dissent took the position that the question of whether Florida had actually used the statute to prosecute an offense not involving the use of physical force was irrelevant.

The Board noted that subsequent to Vail-Bailon, the Eleventh Circuit has applied the realistic probability test to a variety of statutes. The Board made particular note of Pierre v. U.S. Att'y Gen., 879 F.3d 1241, 1252 (11th Cir. 2018) [PDF version], which it described as follows: “[T]he [Eleventh Circuit] squarely rejected the petitioner's argument that 'the act of expelling urine on a jellyfish sting, in order to alleviate the pain, would violate the letter of the [Florida statute prohibiting the battery of a child by causing him to come into contact with bodily fluids], but would not be base or vile and thus would not be a [crime involving moral turpitude].'” In reaching this result, the Eleventh Circuit held that the petitioner in that case had not established a realistic probability that the pertinent statute would be used to prosecute urinating on a jellyfish sting or any other type of realistic conduct that would not involve moral turpitude.

The Board acknowledged, however, that the respondent's position could find support in some out-of-circuit precedents. In Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017) [PDF version], the First Circuit wrote that an overbroad Rhode Island drug statute with respect to the Federal drug schedules was not a predicate immigration offense under the categorical approach, regardless of whether there was a realistic probability that Rhode Island would actually prosecute offenses involving the drug in question. Regarding Swaby, the Board noted in a footnote that the First Circuit ultimately dismissed the alien's appeal after applying the modified categorical approach, meaning that the foregoing analysis was ultimately not necessary to resolve the case. The United States Court of Appeals for the Second Circuit held in Hylton v. Sessions, 897 F.3d 57, 60-63 (2d Cir. 2018) [PDF version], that sale of marijuana in the third degree under New York law was not an aggravated felony under the INA because the statute, on its face, included an offense that was not punishable as a misdemeanor under Federal law. The Second Circuit did not apply the realistic probability test at all. For its part, the Board in the instant matter took the position that Hylton was limited to determining whether an alien was convicted of a drug-trafficking offense, and noted that the Second Circuit acknowledged that there may be other scenarios where the application of the realistic probability test is appropriate. In an unpublished decision in Lorenzo v. Whitaker, 752 F.App'x 482, 485 (9th Cir. 2019), the United States Court of Appeals for the Ninth Circuit held that a California drug conviction was not a deportable offense under the INA because California's definition of methamphetamine is broader than the Federal definition. However, the Ninth Circuit left the door open for the Government to present in another case its argument that the version of methamphetamine covered exclusively under the California schedules did not actually exist, noting only that the issue had not been raised before the appeal in Lorenzo v. Whitaker.

The Board stated that “[t]o the extent that these decisions can be read as being inconsistent with the application of the realistic probability test to the controlled substance statute we now address, they are not binding because this case arises in the Eleventh Circuit.” The Board stated that “the decisions of the Supreme Court and the Eleventh Circuit control and support our approach to this case.” The Board read Moncrieffe as requiring the realistic probability inquiry when a State statute definition is broader than the corresponding Federal definition.

The Board explicitly reaffirmed its decision in Matter of Ferreira. The Board explained the export of this reaffirmation:

Even if the language of a statute is plain, its application may still be altogether hypothetical and may not satisfy the requirements of Moncrieffe if the respondent cannot point to his own case or other cases where the statute has been applied in the manner that he advocates. Accordingly, 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. This approach to the realistic probability test should be applied in any circuit that does not have binding legal authority requiring a contrary interpretation.

The Board thus directed immigration judges to apply the realistic probability test to overbroad State drug schedules for cases arising in any circuit where there is no contrary precedent. This means that in order to establish that an drug conviction does not fall under an INA inadmissibility or deportability provision on these grounds, the alien must establish not only that the State definition is overbroad with respect to the Federal schedules, but also that there is a realistic probability that the State would use the statute to prosecute offenses involving the substance(s) not included in the Federal schedules.

The Board discussed what it considered the practical necessity of its position. Under Supreme Court precedent, adjudicators are required to apply the categorical approach to determine if a criminal conviction falls within the ambient of an INA provision. The categorical approach involves looking solely at the language of the pertinent statutes, and determining whether the minimum conduct prosecutable under the criminal statute falls within the INA provision in question. The Board stated that, in addition to conforming with Supreme Court precedent, its application of the realistic probability test prevented the categorical approach from eliminating the immigration consequences of many drug offenses. We discuss the categorical approach generally in the immigration context in several articles, listed in a growing article index [see index].

For the foregoing reasons, the Board dismissed the respondent's appeal.

Conclusion

The Board's decision in Matter of Navarro Guadarrama does not change its rules on the applicability of the realistic probability test to overbroad State statutes. Instead, the Board merely reaffirmed its past precedent. The decision is noteworthy in that the Supreme Court has issued subsequent decisions on the categorical approach since Matter of Ferreira was published — notably Mathis v. United States, 136 S.Ct. 2223 (2016) [see article]. Furthermore, while no circuit has fully rejected Matter of Ferreira, several — namely the First, Second, and Ninth Circuits — have called the Board's reasoning into question. The Board made clear in Matter of Navarro Guadarrama that its position from 2014 remains unchanged.

The realistic probability test is applicable in cases where an alien is charged with an immigration offense under the INA based on a criminal statute that, on its face, covers a broader swath of conduct than does the INA provision. The decision makes clear that in order to prevail in arguing that the criminal conviction does not fall under the INA, the alien must establish both that the criminal statute is overbroad with respect to the INA and that there is a realistic probability that the conduct covered by the criminal statute but not by the INA would actually be prosecuted by the relevant authority. That is, a mere showing that the criminal statute is overbroad on its face is not sufficient. The categorical approach always requires adjudicators to consider whether the minimum conduct covered under the relevant criminal provision would fall under the INA provision in question.

An alien facing removal proceedings should always consult with an experienced immigration attorney for case-specific guidance. Every case involves particular facts, and an experienced attorney will be able to evaluate each situation and determine what arguments or paths toward relief might be available. To learn more about these issues generally, please see our website's sections on Criminal Aliens [see category], Removal and Deportation Defense [see category], and Immigration Appeals [see category]. We cover many more important immigration precedent decisions, including many on removal proceedings, in our growing index on site [see index].