Crimmigration: When A "Controlled Substance" Isn't A "Controlled Substance", Part 1

I had the opportunity today to attend a Webinar/CLE featuring crimmigration expert Mary Kramer (author of Immigration Consequences of Criminal Activity.). It was titled When Victim-Clients Commit Crime: An Introduction to Immigration Consequences of Common Crimes. I'm told this will be made available online in the near future.

This event introduced me to a fabulous 11th Circuit decision from 2022 that would make an excellent real-o-thetical for your crimmigration course or crimmigration segment of your larger immigration class. The case is Said v. U.S. Attorney General, 28 F.4th 1328 (11th Cir. 2022). (Can we pause for a moment to talk about how crazy it is that we're up to F.4th??).

The issue in the case was whether a conviction under Fla. Stat. § 893.13(6)(a) amounted to a "controlled substance offense" for purposes of immigration law.

Here is the Florida statute:

(6)(a) 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 of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

That seems like a pretty straightfoward problem under 212, doesn't it? After all, under INA § 212(a)(2)(A)(i)(II), "a violation of... any law or regulation of a State ... relating to a controlled substance (as defined in section 802 of title 21)" renders the noncitizen inadmissible. This might be where you would pause with a class and brainstorm ideas about how you might challenge whether the Florida law in fact matches the federal law.

Here's what the Eleventh Circuit saw: It asked whether the "controlled substance" referenced in the Florida statute matched the federal definition of a controlled substance.

Under federal law, 21 U.S.C. § 802(16), marijuana includes:

[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.

However, Florida's law is broader. It 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).

Because the "plain language" of the Florida statute included substances beyond what is federally controlled, the Eleventh Circuit found the state law overbroad and the noncitizen could not be considered to have a "controlled substance" conviction under 212.

-KitJ