explicitly and intentionally overbroad up the board of immigration appeals has examined the specific florida statute for marijuana twice recently issued a lengthly decision in matter water rama and they issued a much shorter decision  this case but in key in both cases they reached the same conclusion that the florida statute was a match to the to the federal statue by real time on their finding that a respondent must find a case in which this statute is applied in the suggested generic manner this is after all except to prove something that's impossible florida per their statute does not differentiate between the parts of the can that is that's more of a sentencing and a status level status for the charge rather than what scientifically necessary in order to to have a charge under that stated what part of the plant were possessed over that's not practical nor is it true because the entire plan is criminalized it's not necessary for a case  summaries to state which parts the plants are possessed the legislative history demonstrated that the change in the statute was intentional after the florida supreme court overturned a conviction the legislature responded by amending the statute to specifically include all parts of the plant the intention may have been to simplify lab duties and it probably does that but that does not mean that the direct effect of their simple bit cation is not to include substances which are not included on the federal stepped schedule it must be accepted that florida prosecute individuals for possessing all parts of the marijuana plant if that was not their intention  definition matched prior to their amendment they put just the gist florida ever discussed what all partly what are all the parts in other words is there any controversy about what's a part of the plant and what's not a part of the plant it in other words it it says parts of the plane its seeds are resin i just i didn't know whether there was any wiggle room there in sort of not specifying each part does that matter i don't believe so because i believe that was intentional so the case that the supreme court overturned the argument in that case was that because the the prohibited materials had included gems which were not prohibited at that time then the entire conviction had to be thrown out because they weren't separating what was prohibited material that was not prohibited materials so they intentionally included everything so they you thank you for that there i feel better already about too much french for me i don't use a good hispanic hey but my point simply is now we have a decision by the end of course you know what they say it went up the th circuit and now the eleven they don't believe you have to give chevron deference to that decision and one of the reasons is that the board really makes big mistakes in both of these cases of we kind of back up a little bit here the board never discusses in either of the  more broad than the federal schedules so therefore under at categorical approach this is not a controlled substance violation so you have to assume that the board is applying a modified categorical approach but they don't break that down they don't they're not apply that  reasoning in either of these decisions so in the modified categorical approach then we look to the language of the statue but really this reasonable probability test do we ignore the plain language of the statue to infer  meaning this this is not legal imagination this is the actual language of the statute that is intentionally been changed to include parts of the plants that are not prohibited under the federal schedule so in to say that this is an generic a manner that this isn't being applied florida did this to simplify prosecutions for possessing marijuana but in doing that they have criminalized parts of the plant that are not criminal that what we're flying this to is not the formalistic but under the realistic possibility realistic probability sorry wrong words under the realistic probability test it is whether we're applying a conduct beyond the not a statute that we're it's not the jellyfish test right i mean we're not trying to find this abstract conduct that may never be prosecuted in florida it if you possess if you had nothing more but previously at the time of this arrest and you possess stocks instead i'm sure you would have been convicted the same as if you possessed leaves they are simply no differentiation between the two and they they were not required to it's not required by law so asking a respondent to try and prove that the state intended what it said is simply not the burden that the respondent should have and it's not really the that the state should have either the state broke their statue they wrote it with intention and with purpose and their intention and their purpose they criminalized the entire plant they did not simply criminalize lilly's they didn't say well but we're we're all only going to do this if you also possess the good parts right we're only going to do this simply so that we can get to the good part and by doing so  defense after the legislature changed the statue itself in it is that and now it would be true even if it seems very unlikely as a practical matter that perhaps a prosecutor would bring a case against someone for just possessing stops and steps well i think we have to think about what marijuana looks like when it's possessed right especially in incredibly small quantities right it's at the plant and it's it's it's i floor so it's not as if if it tests positive for being part of the cannabis plant it's not as if the prosecutor is going to say ok but i need you to go through and figure out whether or not that was only stocks and systems right so the government's argument kind of hinges on well no one would do that right i mean why would you only possess that but that's that's not really the test here the test is what the statute requires the statute requires that you possess cannabis in any form and by doing that you criminalize more then the federal controlled substance act criminalizes again it's not as if the federal government changed their their act after florida in this was all you know we just didn't catch up we were just behind the controlled substance act contained this exclusion and florida had this exclusion and then they changed it they changed it to  everything it was imperfect was purposeful and it was intentional and they did it in order to criminalize the act of possessing cannabis itself not just pacifically the leaves the consequence is that there are bigger here than just this statute as well so when we're talking about a reasonable probabilities has it become to consider finding that the intention of the legislature is not purposeful means that the plain language of statutes should be ignored and instead courts should infer what they believe the statute to mean inferring that the statute the state meant to do something contrary to their own language state statutes need to be given the weight that they deserve and should not be observed by the boards desire to make a conviction paul within the standards of the irony so and this case this the least of the acts criminalized are possessing stops and stems not a controlled substance violation and the respondent would judge so if this court does overturn that decision it does have to go back to the board so they can make findings because they simply ignored it and said we don't need to make any further findings because this we study said eligible so we don't need to decide anything else not been convicted of a just an offense specifically an offense relating to a controlled substance as defined under the c s a in two thousand and one mr lopez consolidates was convicted of possessing not more than twenty grams of marijuana under section eight hundred and ninety three one hundred and thirty six b of the florida state statute an offense that is category plea a controlled substance violation he has repeatedly failed to show a realistic probability that the state of florida would prosecuted defendant under this statute for possessing parts of a marijuana plant that do not fall within the federal definition of a controlled substance and here's where i'd like to begin with the definition of marijuana because i think there has been a manufacture salt derivative mixture of preparation of such plant seeds of resin so what is excluded from the federal statute armature stocks of the plant in the fiber from mature stocks just not that case the respondent the government filed a motion to dismiss for the lack of a final order of removal and that's because mr navarro got a ramos kates is conviction was actually big he added because of the procedural defect largely a board members right so so therefore do we have to give it chevron jeffords i think that the court can look to it but what is really before this court right now is whether or not that conviction in this case is controlled substance violation of the age which this court refused to novo and that board in that case is not really interpreted per se in immigration statute it's looking at whether or not a state statute qualifies for federal purposes so course are you the government saying that you're not seeking any sort of chevron deference or even of the lesser levels of deference we don't really view chevron difference as being a political form of review in this case being that not directly on review and to the fact that chevron pertains more to the board's interpretation of an immigration statute here or gauging in an analysis as to whether or not a state statute here  what florida has regard done with respect to marijuana that even the lowest form of deference is you know there are two or three levels the lowest forms that i can forty four case i can't remember right now the supreme court which bit you know about the different forms that were required to give deference to decisions of agencies you think that only applies in the very case being appeal will the board here decide a presidential decision but the government takes a position that what its people or the court is review and here again the court is not necessarily interpreting an immigration statute but is engaging in an analysis regarding whether or not a state that's you in a conviction under that qualifies as a federal so with respect to that mr lopez good solaces attorney has pointed out that the board did not engage really an analysis regarding divisibility so i wanted to address that as well the immigration judge did discusses in its decision element of the switch has to be breached or agreed upon by the jury and from there we're having found that it ninety three one hundred and thirty six of those civil then look to the records and the records show undeniably that he was convicted of possessing not more than twenty grams of marijuana from there then it found that it was categorically a crime involving a controlled substance however we just agree with mr lopez gonzales about the definition of marijuana and the fact that it's overbroad on the statute is so so under florida and i think you pointed to that definition the definition is me is is pretty clear means all parts of any plans of the genus cannabis whether growing or not and how can that not mean all parts of the plant guidance on this issue that there is an exception before that was removed and what the critical section that were coke is an on purposes of this case are mature stocks and then when you look at that i'm still i'm still on florida statute tell me where in the definition of florida statute goes would exclude mature stocks what part of that if i'm a i'm a prosecutor going to see whether the evidence that's been presented to me is sufficient to bring a charge to what in that definition tells me and i can't charge mature stops so the definition itself just not  exactly to mature stocks and it's government's position that rather it's silent on that issue would that mean it's also silent on  yet exactly so it doesn't say that specifically it is so we have to look to see how the florida state is prosecuting offenses under this statute and that's why we go to applying their realistic probability test so it's a silence regarding this and bites us to go and conduct a further inquiry to see what the state has done and to help put hope would in this particular situation just so i understand as a practical matter how this would work so you want to show someone comes and says look it's just all it's just all parts are covered in florida and he said well you've got to show that what what you have been charged  with what what actually florida found you possessed how would a person determine or figure out through the records of florida whether it's leaps dried leaves or sto differentiate what are the stocks mature stocks early but i think it has to go more to what the intent is what is the value what parts of the plan are of value to the drug so in this particular situation how do we know it was least well because he hasn't claimed that he was possessing anything other necessarily like mature stocks or an oil market from seeds he has and said that during his testimony he admitted that he was in possession of marijuana as well as rolling papers and then it smelled of it now presumably then if he's possessing rolling papers to smoke something it is from a part of the marijuana plant that is of value to the drug user still leave or another different part versus mature stocks which are not of value to drug users being that they are used more in paper production or her other industrial purposes and that is why it's excluded under the federal statute but not and you just carve out some things and not others i'm just trying to figure out how we approach this and i think it's difficult it's all part of the candidates play and so it is really silent in that it does not explicitly set forth the various forms of the plant itself and so you're going to look then to the state case law to determine what is being prosecuted and there are no key summaries under federal law that indicate that florida was prosecuting someone only for the detail but so are you saying that you think in florida that when america marijuana charges brought that the charging instrument specifies what part of the marijuana you think that would be a brother it's strange that if that if you have a statute that's as broad as this that local charging authorities would  the marijuana plant the charging instrument well and then the sounds of little tabs a little does make a lot of sense to me it don't know a little bit of research on it my understanding is that once the officers c then it is brought to the government attorney's office and said this is cheech the this is marijuana but you're not going to find that he had seen necessarily in mature marijuana stocks because those are no value to the is is that subject to judicial notice in any way by just it's just a fact everybody knows a doctor of merit of marijuana ology would say that that his offense is not a controlled substance is government's position that again the definition of marijuana is not facially overbroad and therefore the realistic probably the test is warranted such that we looked at the cases here petitioner has again pointed to no cases in which the state of florida has prosecuted persons for parts of a marijuana plant that are not included within the federal definition therefore petitioner is not has  hear your muted i think there's a way if you think you know of course and so a couple of things here it like to go back to the definition and the difference between the federal definition and the florida actually include the resin every compound manufacture salt driven mixture preparation of plants or seeds or resin i do think that it is important in you know to kind of what's happened when we're talking about testing for t h c in marijuana products obviously that has evolved greatly and last two or three years the controlled substance actually changed in december of two thousand and eighteen that now the substances that stating that again we're only talking about the good parts when we prosecute is simply not true this is a dried material that can mix together and com and these labs specifically the florida lab under the florida statute is not separating out these mixtures and saying how much good stuff there is and how much bad stuff there is so just because the respond had rolling papers and a small quantity of what he believed to be marijuana does not believe that does not demonstrate that he possessed marijuana demonstrated thought he was just marijuana and also i think when we get to that far into this analysis we're we're not looking at the statute anymore which is what we should be focused on so we should be looking at the statute and the least of the acts criminalized we know what statute he was convicted under their record going this far as what he actually possessed and what his actual actions were really not relevant what's relevant is that he was convicted under this statute and this statute is over broad and it contains substances which are not criminalized under the federal statutes the board of immigration appeals it should be found that this is not a controlled substance violation it is not either a categorical maps or a modified categorical match and does not fall this conviction falls under the realistic probability test he was convicted