United States Court of Appeals

For the Eighth Circuit 

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No. 19-3412

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Javier Lopez Gonzalez

 Petitioner

v.

Monty Wilkinson, Acting Attorney General of the United States1

 Respondent

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Petition for Review of an Order of the

Board of Immigration Appeals

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Submitted: October 23, 2020

 Filed: March 9, 2021 

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Before BENTON, SHEPHERD, and KELLY, Circuit Judges. 

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KELLY, Circuit Judge

The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., allows 

the Attorney General to cancel the removal of certain noncitizens. See id.

§ 1229b(b)(1). Among the requirements for cancellation eligibility is that the 

1

Monty Wilkinson is now Acting Attorney General of the United States and 

is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c).
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noncitizen has not been convicted of any of a number of specified federal offenses. 

Id. § 1229b(b)(1)(C). To determine whether a petitioner’s state conviction should 

be considered the equivalent of one of these federal offenses, we apply what is 

known as the categorical approach, which has us compare the statutory elements of 

the state offense with those of the analogous federal offense to see whether they 

match. 

The question in this case is whether the categorical approach requires a 

petitioner seeking cancellation of removal to demonstrate both that the state offense 

he was convicted of is broader than the federal offense and that there is a realistic 

probability that the state actually prosecutes people for the conduct that makes the 

state offense broader than the federal offense. We conclude that it does not. 

I. 

Javier Lopez Gonzalez is a native and citizen of Mexico. He entered the 

United States without legal permission in 1994 and again in 1999 and has been living 

in the country ever since. In 2001, Gonzalez was arrested in Florida for possession 

of marijuana. He pleaded nolo contendere and was convicted of possession of 

twenty grams or less of cannabis under Fla. Stat. § 893.13(6)(b).

On December 19, 2018, the Department of Homeland Security (DHS) 

initiated removal proceedings against Gonzalez. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 

1229a(e)(2)(A). In response, Gonzalez filed an application for cancellation of 

removal under 8 U.S.C. § 1229b(b)(1), which provides: 

The Attorney General may cancel removal of, and adjust to the status of an 

alien lawfully admitted for permanent residence, an alien who is inadmissible 

or deportable from the United States if the alien – 

(A) has been physically present in the United States for a continuous 

period of not less than 10 years immediately preceding the date of 

such application;
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(B) has been a person of good moral character during such period; 

(C) has not been convicted of an offense under 

section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to 

paragraph (5); and

(D) establishes that removal would result in exceptional and extremely 

unusual hardship to the alien’s spouse, parent, or child, who is a 

citizen of the United States or an alien lawfully admitted for 

permanent residence.

On May 14, 2019, an Immigration Judge (IJ) denied Gonzalez’s application, 

finding both that Gonzalez had not shown he had been a person of good moral 

character under subsection (B) and that his Florida conviction served as a 

disqualifying offense under subsection (C). The IJ ordered that Gonzalez be 

removed from the United States to Mexico. 

Gonzalez appealed the IJ’s decision to the Board of Immigration Appeals 

(BIA). In October 2019, the BIA dismissed his appeal, agreeing that the Florida 

conviction made him ineligible for cancellation. Specifically, the BIA noted that, 

although the Florida statute criminalized possession of parts of the marijuana plant 

that are not criminalized under federal law, Gonzalez had not met his burden of 

showing “a realistic probability that the state would actually apply the language of 

the statute” to prosecute people solely for possessing these parts of the plant. 

Because the BIA concluded that Gonzalez was ineligible for cancellation on this 

basis, it did not address his challenge to the IJ’s determination on good moral 

character. 

Gonzalez timely filed a petition for review before this court. 

 
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II. 

We review de novo legal conclusions of the BIA. Jima v. Barr, 942 F.3d 468, 

471–72 (8th Cir. 2019). Though deference is due to the BIA’s constructions of 

ambiguous provisions of the INA, see Dominguez-Herrera v. Sessions, 850 F.3d 

411, 415 (8th Cir. 2017), no such deference is warranted when, as here, the BIA’s 

legal analysis is based on its interpretation of Supreme Court precedent. Ledbetter 

v. Goodyear Tire & Rubber Co., 550 U.S. 618, 642 n.11 (2007) (“Agencies have no 

special claim to deference in their interpretation of [Supreme Court] decisions.”); 

Owen v. Bristol Care, Inc., 702 F.3d 1050, 1054 (8th Cir. 2013) (“This court, 

however, is not obligated to defer to the Board’s interpretation of Supreme Court 

precedent under Chevron or any other principle.” (cleaned up)); cf. Lorenzo v. 

Sessions, 902 F.3d 930, 937 (9th Cir. 2018) (reviewing a BIA decision de novo 

because the BIA was not entitled to deference for its interpretation of Supreme Court 

guidance on the categorical approach). 

The primary issue before us is whether Gonzalez has been convicted of an 

offense enumerated in subsection (C) of § 1229b(b). In particular, we must 

determine whether his prior Florida conviction for possession of marijuana is a state 

offense “relating to a controlled substance,” as that term is defined in 21 U.S.C. 

§ 802. 8 U.S.C. § 1182(a)(2)(A)(i)(II); see 8 U.S.C. § 1229b(b)(1)(C) (maintaining 

that cancellation of removal is unavailable for noncitizens who have “been convicted 

of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title”). If it 

is, Gonzalez is ineligible for cancellation of removal. 

To answer this question, we apply the categorical approach, looking “not to 

the facts of the particular prior case, but instead to whether the state statute defining 

the crime of conviction categorically fits within the ‘generic’ federal definition.” 

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (internal quotations omitted). This 

inquiry involves comparing the elements required for both offenses. See Descamps 

v. United States, 570 U.S. 254, 261 (2013). “If the relevant statute has the same 

elements as the ‘generic’ [federal] crime, then the prior conviction can serve as [a 
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disqualifying offense].” Id. (quoting Taylor v. United States, 495 U.S. 575, 599 

(1990)). If, however, the state crime is broader than the generic federal crime, a 

conviction for that offense cannot disqualify a petitioner for cancellation of removal. 

See id. “Because we examine what the state conviction necessarily involved, not 

the facts underlying the case, we must presume that the conviction rested upon 

nothing more than the least of the acts criminalized, and then determine whether 

even those acts are encompassed by the generic federal offense.” Moncrieffe, 569 

U.S. at 190–91 (cleaned up). 

In this case, we must compare the federal definition of marijuana to its Florida 

definition. Under federal law, marijuana is defined 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.” 21 U.S.C. § 802(16)(A). Expressly 

excluded from the federal definition, however, are “the mature stalks of such plant,” 

products made from the mature stalks, and “oil or cake made from the seeds of such 

plant.” Id. § 802(16)(B)(ii). 

The state statutes underlying Gonzalez’s prior conviction are Fla. Stat.

§ 893.02(3) and Fla. Stat. § 893.13(6)(b). The latter—the statute under which 

Gonzalez was convicted—prohibits possession of twenty grams or less of cannabis. 

Id. § 893.13(6)(b). The former defines “cannabis” under Florida law 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.” Id. § 893.02(3). 

Fla. Stat. § 893.13(6)(b) specifically exempts “resin extracted from the plants of the 

genus Cannabis.” But unlike the federal statute, neither provision exempts seeds or 

mature stalks from its definition of marijuana. 

The parties agree that, on its face, the Florida statute covers conduct that the 

federal one does not. While a person found in possession of only mature stalks of a 

marijuana plant could not be prosecuted under federal law, he could be prosecuted 
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under Florida law. Applying the categorical approach, the broader scope of the 

Florida statute would seem to indicate that a conviction under it cannot serve as a 

disqualifying offense under § 1229b(b). Yet the government contends that this is 

not the end of the inquiry. To succeed under the categorical approach, the 

government argues, Gonzalez must further show that there is a “realistic probability 

that Florida would prosecute an individual for possessing marijuana stalks.” The 

government asserts that the burden is on Gonzalez to provide evidence, either 

through the facts of his own case or through other Florida cases, that people in 

Florida are in fact prosecuted for possessing stalks of marijuana. 

The “realistic probability” language comes primarily from two Supreme Court 

cases: Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and Moncrieffe v. Holder, 

569 U.S. 184. In Duenas-Alvarez, where the Supreme Court first introduced and 

applied its realistic probability language, the petitioner argued that a California 

statute’s definition of “theft” was broader than it appeared as written, such that it 

would apply to conduct beyond that captured by the “generic” federal definition of 

theft. See 549 U.S. at 190–94. The Court concluded that, to support his against-thegrain reading of the statutory language, the petitioner had to show “a realistic 

probability, not a theoretical possibility, that the State would apply its statute to 

conduct that falls outside the generic definition of a crime.” Id. at 193. Because he 

had not demonstrated that the state courts in fact interpreted the statute in this way, 

the Court concluded that the state statute was not broader than the federal offense. 

See id. at 193–94. Moncrieffe reaffirmed this principle, acknowledging that there 

“must be a realistic probability” that a state statute captures conduct beyond what is 

criminalized under federal law and describing the realistic probability inquiry as a 

way to ensure that the categorical approach does not become “an invitation to apply 

‘legal imagination’ to the state offense.” 569 U.S. at 191 (cleaned up); see also id.

at 194–95 (concluding that because a Georgia controlled substances statute was, on 

its face, broader than the federal statute, the petitioner had not been convicted of an 

aggravated felony). 
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Subsequent case law demonstrates how the realistic probability inquiry comes 

into play. We applied the framework in United States v. Maldonado, 864 F.3d 893 

(8th Cir. 2017), where the defendant made a similar argument to the one made in 

Duenas-Alvarez about the scope of specific statutory terms. The argument in 

Maldonado was that the terms “deliver” and “distribute” used in controlled 

substance statutes from Iowa and Nebraska “could be construed to cover conduct 

akin to a mere offer to sell drugs,” which would go beyond the federal definitions. 

864 F.3d at 899. But whether the statutes “could be” so construed was not the correct 

approach. Instead, the defendant needed to point to specific cases in which Iowa 

and Nebraska “applied their statutes to such conduct” in order to demonstrate a 

realistic probability that the statutes had the reach he ascribed to them. Id. at 900. 

Without this showing, we could not “conclude that the statutory definitions . . . 

sweep more broadly than the generic federal definition.” Id. 

In Ortiz v. Barr, 962 F.3d 1045 (8th Cir. 2020), we addressed whether a 

Minnesota statute qualified as a crime of moral turpitude under federal law. There 

we noted that “to constitute a crime involving moral turpitude, the offense must 

require a culpable mental state and reprehensible conduct.” Id. at 1048 (cleaned up). 

Yet “the plain language” of the statute at issue “impose[d] no mens rea requirement,” 

and “an offense that requires general intent only is not considered to be a crime 

involving moral turpitude.” Id. at 1050. Because there was no ambiguity in the 

statute, we concluded that “there is a realistic probability that Minnesota would 

apply its obstruction of legal process statute to cases that lacked the requisite degree 

of scienter necessary” under federal law. Id. at 1051. The realistic probability was 

evident from the language of the statute itself, so, unlike in Maldonado, there was 

no need to provide evidence regarding how Minnesota in fact applied it. 

As the First Circuit has observed, the Supreme Court’s opinion in DuenasAlvarez makes “no reference to the state’s enforcement practices” or to how often 

prohibited conduct is prosecuted. Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017). 

Rather, the focus of the realistic probability inquiry is on how a state statute might 

be applied. “The requirement that a defendant show a realistic probability that the 
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State would apply its statute to conduct that falls outside the generic definition of a 

crime operates as a backstop when a statute has indeterminate reach, and where 

minimum conduct analysis invites improbable hypotheticals.” Hylton v. Sessions, 

897 F.3d 57, 63 (2d Cir. 2018) (internal quotations omitted); cf. Swaby, 847 F.3d at 

66 (describing the realistic probability inquiry as a “sensible caution against 

crediting speculative assertions regarding the potentially sweeping scope of 

ambiguous state law crimes”). It is in these instances that a petitioner may be 

required to demonstrate through examples that the statute in question has the reach 

she ascribes to it. But when the statute’s reach is clear on its face, it takes no “legal 

imagination” or “improbable hypotheticals” to understand how it may be applied

and to determine whether it covers conduct an analogous federal statute does not.

Cases the Supreme Court has decided since Moncrieffe support our approach. 

In Mellouli v. Lynch, 135 S. Ct. 1980 (2015), for example, the Court examined 

whether a conviction under Kansas law for possession of drug paraphernalia 

authorized the petitioner’s removal under the INA. Id. at 1984. Without relying on 

or referring to the realistic probability inquiry, the Court applied the categorical 

approach and held that it did not. The Court reached this conclusion because the 

Kansas statute did not require any finding that a defendant also possessed a 

controlled substance, making it broader than the related federal offense. Id. at 1989–

91. Because the statute unambiguously applied to possession of drug paraphernalia 

alone, no additional proof that the petitioner’s interpretation of the statute was 

realistic was required. See also Mathis v. United States, 136 S. Ct. 2243 (2016) 

(holding, without making reference to the realistic probability inquiry, that because 

a state burglary statute encompassed more conduct than the generic federal offense, 

the state offense was broader than the corresponding federal one). 

The government’s interpretation invites us to conclude that “realistic 

probability” means that petitioners must prove through specific convictions that 

unambiguous laws really mean what they say. Not only is this proposal contrary to 

our understanding of Duenas-Alvarez and Moncrieffe, but it is also at odds with the

categorical approach itself, which asks us to focus on the language of the statutory 
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offense, “not the facts underlying the case.” Moncrieffe, 569 U.S. at 190; see also

Descamps, 570 U.S. at 261 (“The key [of the categorical approach] . . . is elements, 

not facts.”).

2

 We therefore reject the government’s interpretation and conclude that,

“in applying the categorical approach, state law crimes should . . . be given their 

plain meaning.” Swaby, 847 F.3d at 66.3

 

Here, the plain language of the Florida statute makes clear that it applies to 

conduct not covered by the federal statute. The federal statute exempts from 

prosecution the possession of seeds and mature stalks of the marijuana plant. 

Because the Florida statute under which Gonzalez was convicted offers no such 

exemption, it is unambiguously broader than the federal law referenced in 

§ 1229b(b). This is all that Gonzalez was required to show under the categorical 

approach. The BIA thus erred in finding that Gonzalez was ineligible for 

cancellation of removal on the basis of his Florida conviction. 

2

We also note that one of the stated goals of the categorical approach’s focus 

on the elements of a crime, rather than the underlying facts, is to “avoid[] unfairness 

to defendants” and petitioners, who “may have no incentive to contest what does not 

matter under the law; to the contrary, [they] may have good reason not to.” Mathis, 

136 S. Ct. at 2253 (internal quotations omitted). Gonzalez and other similarly 

positioned Florida defendants would have no incentive, and likely no ability, to 

request a determination of whether the cannabis they were found with consisted of 

stems, since such an inquiry would be irrelevant under Florida law. Thus, if Florida 

has prosecuted people for possessing cannabis consisting in part or in full of just 

stems, it is unclear whether this fact would be documented. 

3

The majority of our sister circuits have similarly declined to follow the 

government’s framing of the realistic probability inquiry. Swaby, 847 F.3d at 66; 

Hylton, 897 F.3d at 63–65; Jean-Louis v. Att’y Gen., 582 F.3d 462, 481–82 (3d Cir. 

2009); United States v. Aparicio-Soria, 740 F.3d 152, 157-58 (4th Cir. 2014) (en 

banc); United States v. Lara, 590 F. App’x 574, 584 (6th Cir. 2014); Chavez-Solis 

v. Lynch, 803 F.3d 1004, 1009–10 (9th Cir. 2015); United States v. Titties, 852 F.3d 

1257, 1274-75 (10th Cir. 2017); Ramos v. Att’y Gen., 709 F.3d 1066, 1071–72 (11th 

Cir. 2013). But see United States v. Castillo-Rivera, 853 F.3d 218, 222–24 (5th Cir. 

2017) (en banc); United States v. Vail-Bailon, 868 F.3d 1293, 1306–07 (11th Cir. 

2017) (en banc). 
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III. 

The BIA affirmed the denial of Gonzalez’s application for cancellation of 

removal because it concluded that he had not satisfied subsection (C) of § 1229b(b). 

It did not reach the IJ’s finding that Gonzalez had also failed to meet subsection (B). 

“Because the BIA did not consider the IJ’s alternative grounds for denying relief, 

those issues are not properly before us.” Fofanah v. Gonzales, 447 F.3d 1037, 1040 

(8th Cir. 2006).

Because the BIA’s decision relied on a misinterpretation of the realistic 

probability inquiry, we grant the petition for review, vacate, and remand for further 

proceedings consistent with this opinion. 

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