But in order for a marijuana conviction to qualify as a deportable offense or a crime of inadmissibility, marijuana, as defined under Florida law must qualify as a controlled substance, as defined under Federal law in 21 U.S.C. §802. And that is exactly what the Eleventh Circuit analyzed in Said. In Said, the Court looked at the definition of marijuana (or cannabis, as it is referred to in the Florida Statute) in Fla. Stat. §893.02(3) and the definition of marijuana under Federal law in 21 U.S.C. §802(16) to determine whether they were a match.
The Eleventh Circuit determined that the Florida definition of marijuana is broader than the federal definition. Florida includes the mature stalk of the marijuana
But would the State of Florida really prosecute someone for possession of mature marijuana stalks? That is the question the Immigration Judge and Board of Immigration Appeals asked. That’s because the courts have developed something called the “Reasonable Probability” test. If a state statute is broader than a federal statute, the litigant must show that the State would actually prosecute someone for violating the broader portion of the statute. So, for example, in Mr. Said’s case, he would have to show that someone in Florida had actually been prosecuted for possessing or selling mature marijuana stalks. Because Mr. Said didn’t, or couldn’t, provide the Immigration Judge or Board of Immigration Appeals with any cases where someone was prosecuted in Florida for possession of mature marijuana stalks, the Immigration Judge decided that his Florida possession of marijuana conviction did qualify as a controlled substance as defined under federal law and the BIA upheld that decision.
The Eleventh Circuit reversed the BIA and held that Mr. Said did not have to present a case where Florida prosecuted someone for possession of mature marijuana stalks because the Florida statutory language itself showed that there was a realistic probability that the State would prosecute someone for possession of mature stalks. In including the term stalk and other like terms, the statute is clear and unambiguous in its design to criminalize the possession or sale of mature marijuana stalks. Therefore, the Florida definition of marijuana is broader than the federal definition and there is a realistic probability that Florida would prosecute someone for violating the broader portion of the statute.
The Eleventh Circuit’s decision now calls into question any marijuana conviction arising out of the state of Florida. According to this decision, a Florida marijuana conviction should not serve as a controlled substance basis for inadmissibility or deportability. It also should not stop the accrual of the requisite time needed to apply for cancellation of removal. However, a marijuana conviction can still lead to loss or denial of DACA and/or TPS. With any new court decision that dramatically affects a legal issue, there are sure to be many court cases to follow that further flesh out the impact of this particular decision. For example, will a Sale of Marijuana be considered a crime involving moral turpitude, which could be a separate basis for inadmissibility and/or deportability.
These are all issues that immigration lawyers will be keeping a close eye on. For any non-citizen with a pending marijuana case or a prior marijuana conviction, call an immigration attorney to discuss how that conviction affects your immigration status.