Monday, January 20, 2014
Immigration Article of the Day: Removal Defense and Florida Drug Crimes: Applying the Categorical Approach by Rebecca A. Sharpless
Abstract: This practice advisory discusses defenses to removal for immigrants with convictions under common Florida drug statutes. This advisory assumes basic familiarity with the removal grounds in the Immigration and Nationality Act, the categorical approach, and the U.S. Supreme Court’s decisions in Moncrieffe v. Holder and Descamps v. United States. This advisory addresses the following topics: whether differences between the Florida and federal drug schedules allow for arguments to prevent removal; whether drug paraphernalia convictions under Florida law are drug offenses that “relate to” a controlled substance as defined by the federal drug schedules; whether a conviction for drug trafficking under Florida State Statute § 893.135 is always a federal “drug trafficking” aggravated felony under immigration law; whether the lack of a mens rea element in Florida drug statutes provides a defense to removability under the drug trafficking aggravated felony ground of deportation; whether certain offenses for drug distribution under Florida law fall outside the aggravated felony definition because the minimum conduct criminalized is distribution of a small amount of marijuana without remuneration, as analyzed in Moncrieffe v. Holder.