Cite as 27 I&N Dec. 560 (BIA 2019) Interim Decision #3956

560 

### Matter of Jesus Gabriel NAVARRO GUADARRAMA, Respondent

Decided June 11, 2019

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Where an alien has been convicted of violating a State drug statu te that includes a controlled substance that is not on the Federal controlled subs tances schedules, he or she must establish a realistic probability that the State would act ually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction. Matter of Ferreira , 26 I&N Dec. 415 (BIA 2014), reaffirmed.

FOR RESPONDENT: David Stoller, Orlando, Florida

FOR THE DEPARTMENT OF HOMELAND SECURITY: Maria T. Armas, Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, MANN, and KELLY, Board Members.

MANN, Board Member:

In a decision dated August 2, 2018, an Immigration Judge determined that the respondent is removable under sections 212(a)(2)(A)(i)(II ), (6)(A)(i), and (7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C

. §§ 1182(a)(2)(A)(i)(II), (6)(A)(i), and (7)(A)(i)(I) (2012), as an alien who was convicted of a controlled substance violation, is present i n the United States without being admitted or paroled, and is not in possess ion of a valid entry document. Finding that the respondent is ineligible for a waiver of inadmissibility under section 212(h) of the Act, the Immigratio n Judge denied his application for adjustment of status and ordered him rem oved from the United States. The respondent has appealed from that decision. The appeal will be dismissed.



### I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico. In 2005 and 2010, he was convicted of possession of less than 20 grams of marijuana inviolation of section 893.13(6)(b) of the Florida Statutes. On the basis of these two convictions, the Immigration Judge found that the respondent is inadmissibleCite as 27 I&N Dec. 560 (BIA 2019) Interim Decision #3956

561 under section 212(a)(2)(A)(i)(II) of the Act. 1 Because the respondent was convicted of more than a “single offense of simple possession o f 30 grams or less of marijuana,” the Immigration Judge determined that heis ineligible for a section 212(h) waiver and, consequently, for adjustment of s tatus.



### II. ANALYSIS

Under section 212(a)(2)(A)(i)(II) of the Act, an alien who has been convicted of a violation of a State law “relating to a controlle d substance (as defined in section 102 of the Controlled Substances Act (21 U.S .C. 802))” is inadmissible. The respondent argues that he is not inadmissible under that section because the definition of cannabis (commonly referr ed to as marijuana) under Florida law is broader than the Federal defini tion. At the time of the respondent’s convictions, marijuana, which w as a schedule I controlled substance under 21 U.S.C. § 812 (2000), was 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 comp ound, manufacture, salt, derivative, mixture, or preparation of such plant, its se eds or resin. Such term 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 (excep t the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such p lant which is incapable of germination.

21 U.S.C. § 802(16) (2000) (emphasis added). 2 Like the Federal statute, Florida once defined “cannabis” to exclude “the mature stalks of the plant.” Purifoy v. State , 359 So. 2d 446, 447 (Fla. 1978) (quoting Fla. Stat. § 893.02(2) (1975)). However, in 1978, the Florida Supreme Court quashed a conviction for possession of more than 5 grams of

1 The respondent had a third conviction for a marijuana possessio n that was subsequently vacated. He was also convicted of contributing to the delinque ncy of a minor. However, for purposes of this appeal, we need not decide whether that co nviction is for a crime involving moral turpitude.

2 On December 20, 2018, the Federal definition of “marijuana” at 21 U.S.C. § 802(16) was amended by the Agricultural Improvement Act of 2018, Pub. L . No. 115-334, § 12619(a), 132 Stat. 4490, 5018. The definition essentially re mained the same, but the statute was divided into two parts: subsection (A), which defi nes marijuana, and subsection (B), which specifies what the term marijuana does not include. In addition to the mature stalks and other parts of the plant that were previously exclud ed, § 802(16)(B) now also provides that that marijuana does not include a certain type of “hemp.” Id. § 10113, 132 Stat. at 4908 (to be codified at 7 U.S.C. § 1639o(1)).Cite as 27 I&N Dec. 560 (BIA 2019) Interim Decision #3956

562 marijuana where the defendant possessed “an aggregation of proh ibited cannabis and non-prohibited ‘mature (plant) stalks’ weigh[ing] 7. 05 grams.”
Id. In response, the Florida Legislature amended its laws to redefine the term “cannabis” in section 893.02(3) 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 ev ery compound, manufacture, salt, derivative, mixture, or preparation of the p lant or its seeds or resin.

(Emphasis added.) 3 The respondent has the burden to establish that he is not inadmissible. Section 240(c)(2)(A) of the Act, 8 U.S.C. § 1229a(c)(2)(A) (2012 ); 8 C.F.R. § 1240.8(c), (d) (2018). Arguing that Florida law defines cannabis more broadly than 21 U.S.C. § 802(16), the respondent asserts that the statutes are not a categorical match and, therefore, that he has not been convicted of a controlled substance violation within the meaning of section 212(a)(2)(A)(i)(II) of the Act. However, the fact that some incongr uity exists between the Federal and Florida laws is not dispositive. To show that a State statute prohibits conduct outside the generic definition of an offense in a Federal statute, an alien must establ ish that there is “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic def inition of a
crime.” Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193 (2007); see also Moncrieffe v. Holder , 569 U.S. 184, 191 (2013). We have held that “even where a State statute on its face covers a . . . [controlled] s ubstance not included in a Federal statute’s generic definition, there must be a realistic probability that the State would prosecute conduct falling outs ide the generic crime in order to defeat a charge of removability.” Matter of Ferreira

, 26 I&N Dec. 415, 420–21 (BIA 2014). Thus, an alien can establish that he is not removable based on a conviction for a State drug offense if he can show that in either his own case or other cases, the State court a ctually applied the statute to an offense involving a substance that is not f ederally

3 The stated purpose of Florida’s expansion of the definition of cannabis was to facilitate law enforcement’s determination of the precise weight of a control led substance by eliminating the time-consuming need for drug labs to separate the prohibited part of the cannabis plant from the stalks and stems, which are of no drug va lue to the user. Joint Legis. Mgmt. Comm., Fla. Leg., 1979 Summary of General Legisla tion, at 178–79, https://fall.law.fsu.edu/collection/FlSumGenLeg/FlSumGenLeg1979 .pdf. In addition to expanding the definition of cannabis, the legislature increas ed the misdemeanor/felony threshold for simple possession from 5 to 20 grams to make allowances for the possible weight of stalks and stems. Nothing in the Florida law suggests th at there was any intent to criminalize forms of marijuana that are not also federally c ontrolled.Cite as 27 I&N Dec. 560 (BIA 2019) Interim Decision #3956

563 controlled. Id. at 422 (citing Duenas-Alvarez , 549 U.S. at 193); see also Matter of Mendoza Osorio , 26 I&N Dec. 703, 706 n.2 (BIA 2016). With respect to his own case, the respondent does not claim that his Florida possession convictions were for a substance that is outsid e the Federal definition of marijuana at 21 U.S.C. § 802(16). In fact, he admits that his convictions were based on pleas of guilty or nolo conte ndere to possession of marijuana and were in conjunction with convictions for possession of drug paraphernalia. There is no basis to believethat the substances he possessed were marijuana stalks, sterilized seeds, or other derivatives that are not federally controlled. Moreover, since sep arate stalks and stems are of no value to a drug user, it is unlikely that therespondent would possess such substances along with drug paraphernalia. The respondent has also not presented any cases where a defendant was successfully prosecuted under Florida law for an offense that inv olved only a form of marijuana that was not prohibited by 21 U.S.C. § 802(16 ). We are also not aware of any, and the change in the Florida law makes such prosecutions even more unlikely. We are therefore unpersuaded that there is a realistic probability that Florida would prosecute a person under section 893.13(6)(b) for possession of less than 20 grams of a form of m arijuana that is not federally controlled. Notwithstanding the actual application of section 893.02(3) of t he Florida Statutes, however, the respondent argues that the plain language of the statute itself establishes a realistic probability that the State would prosecute conduct that falls outside the Federal definition of marijuana. In sup port of this contention, the respondent relies on a decision of the United Stat es Court of Appeals for the Eleventh Circuit, in whose jurisdiction this ca se arises. Ramos v. U.S. Att’y Gen. , 709 F.3d 1066 (11th Cir. 2013). In that case, the
court found that Duenas-Alvarez does not require a showing that the State would prosecute conduct falling outside the Federal definition of the crime “when the statutory language itself, rather than ‘the applicati on of legal imagination’ to that language, creates the ‘realistic probabili ty’ that a state would apply the statute to conduct beyond the generic definitio n.” Id. at 1072 (quoting Duenas-Alvarez , 549 U.S. at 193).
The decision in Ramos predates the Supreme Court’s ruling in Moncrieffe , where the Court stated that to successfully “defeat the categorical comparison” under the realistic probability test, a p arty “would
have to demonstrate that the State actually prosecutes the relevant offense .” Moncrieffe , 569 U.S. at 206 (emphasis added). Moreover, a majority of the Eleventh Circuit sitting en banc subsequently declined to foll ow Ramos ’s understanding of the realistic probability doctrine. United States
v. Vail-Bailon , 868 F.3d 1293, 1295 (11th Cir. 2017) (en banc), cert. denied

, 138 S. Ct. 2620 (2018) (mem.).Cite as 27 I&N Dec. 560 (BIA 2019) Interim Decision #3956

564 In that case, the Eleventh Circuit considered whether the offens e of felony battery under Florida law is a crime of violence under th e United States Sentencing Guidelines. The defendant proffered several hypoth etical scenarios, claiming that an offender could be prosecuted under th e Florida statute for conduct involving only the minimal use of force in hi s effort to demonstrate that the statute “flunks the physical force test.” Id. at 1305. However, a majority of the court found his argument to be “[c]ontr ary to every Florida court that has considered the issue,” noting that “the real-world examples of Florida felony battery [it was] aware of all involv e conduct that clearly required the use of physical force.” Id. at 1305–06. The Eleventh Circuit relied on the realistic probability test in Moncrieffe
and Duenas-Alvarez to reject the defendant’s “farfetched hypotheticals.” Id. at 1306. It found “no support in Florida law for the idea that [ the statute] is designed to criminalize the conduct described” by the defendant, which involved only “highly improbable ways of inflicting severe phys ical injury
on a victim.” Id. at 1306–07. The court therefore concluded that there was no realistic probability of prosecution in the hypothetical scen arios posited by the defendant, which it said “reflect little more than the verb oten legal imagination proscribed” by the Supreme Court. Id. at 1307. In support of his argument, the respondent cites to a dissenting o pinion in
the case. Id. at 1315 (Rosenbaum, J., dissenting). According to that opinion, “Florida felony battery does not satisfy the federal definition for a ‘crime of violence,’ despite what intuition might otherwise tell us.” Id. at 1315. In this regard, the dissent asserted that “a petitioner does not engage in ‘legal imagination’ ‘when the statutory language itself . . . creates the ‘realistic probability’ that a state would apply the statute’ to the identi fied least culpable conduct,’ regardless of whether it actually has done s o.” Id. at 1320 (quoting Ramos , 709 F.3d at 1071–72)). Thus, the dissent stated that where the language of the statute itself proscribes conduct outside the generic definition of the crime, the question “whether Florida has actua lly prosecuted such a case is entirely irrelevant to the analysis.” Id. at 1320–21. Subsequent to its decision in Vail-Bailon , the Eleventh Circuit has consistently required that actual examples be identified to demons trate that a statute falls outside the generic definition of the crime at is sue. See, e

. g ., United States v

. St

. Hubert , 909 F.3d 335, 350 (11th Cir. 2018); Ovalles

v

. United States , 905 F.3d 1300, 1305–06 (11th Cir. 2018) (per curiam), petition for cert. filed (U.S. March 12, 2019) (No. 18-8393); Pierre v

. U

. S

. Att’y Gen. , 879 F.3d 1241, 1252 (11th Cir. 2018); United States

v

. Morales-Alonso , 878 F.3d 1311, 1319–20 (11th Cir. 2018). For example,
in Pierre , 879 F.3d at 1252, the court squarely rejected the petitioner’s argument that “the act of expelling urine on a child’s jellyfish sting, in order to alleviate the pain, would violate the letter of the [Florida statute prohibitingCite as 27 I&N Dec. 560 (BIA 2019) Interim Decision #3956

565 the battery of a child by causing him to come into contact with bo dily fluids], but would not be base or vile and thus would not be a [crime involving moral turpitude].” Relying on the Supreme Court’s realistic probability test, the
court stated that “to show that a statute creates a crime outside the categorical definition, a party . . . must at least point to his own case or other cases in
which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Id. (quoting Duenas-Alvarez , 549 U.S. at 193) (emphasis added). The court denied the petition for review, finding that the petitioner had “pointed to no instance in which the state of Florida has prosecuted a person under [the child battery statute] for urinatin g on a jellyfish sting, or indeed for any realistic conduct that wouldnot qualify as a crime involving moral turpitude.” Id. The respondent’s position on appeal is not wholly without legalsupport, however. In certain circumstances, some circuit courts have look ed only to a State statute if they found that its language was plain and clearly reached conduct outside the generic definition. For example, in Swaby v

. Yates , 847 F.3d 62, 66 (1st Cir. 2017), the First Circuit concluded that b ecause “the plain terms of the Rhode Island drug schedules” covered a drug that the F ederal schedules did not, the statute was “simply too broad” for the alie n’s crime “to qualify as a predicate offense under the categorical approa ch, whether or not there is a realistic probability that the state actually wi ll prosecute offenses involving that particular drug.” 4 Similarly, in Hylton v

. Sessions

, 897 F.3d 57, 60–63 (2d Cir. 2018), the Second Circuit held, with out applying the realistic probability test, that the sale of marijuana in t he third degree under New York law was not an aggravated felony drug-traffickingoffense because the State statute, on its face, explicitly included an offe nse that is punishable as a misdemeanor under Federal law. 5 In an unpublished decision, the Ninth Circuit held that the defi nition of methamphetamine under California law is broader than the Federa l definition because it includes geometric isomers, which are not in the Controlled
Substances Act. Lorenzo v

. Whitaker , 752 F. App’x 482, 485 (9th Cir. 2019)

4 Despite this conclusion, the First Circuit ultimately dismissed the alien’s petition for review, applying the modified categorical approach to find thathis convictions were for crimes relating to the distribution of marijuana. Therefore, i ts discussion of the realistic probability analysis was not necessary to the result in the cas e.

5 We consider the decision in Hylton to be limited to the specific issue addressed— whether the alien was convicted of a drug-trafficking aggravate d felony. Despite its holding, the Second Circuit recognized that “[t]here are cases in which a separate realistic probability inquiry remains necessary because the elements of the state statute alone do not provide sufficient guidance on its application.” Hylton , 897 F.3d at 64.Cite as 27 I&N Dec. 560 (BIA 2019) Interim Decision #3956

566 (mem.). 6 The court concluded that the alien was not deportable “[b]ecaus e this mismatch between the federal and state statutes is apparent on the face of the statutes, such that no rational interpretation of either statute would
reconcile the two.” Id. It also rejected the Government’s contention that “the facial overbreadth in California law is of no significance beca use geometric isomers of methamphetamine do not in fact exist,” finding that th e issue had not previously been raised. Id. However, the court did “not foreclose the government from presenting its new argument or new evidence in another case,” noting that its decision “concludes only that the record in this case does not show that [geometric isomers of methamphetamine] do not exist.”
Id. at 485 & n.2. 7 To the extent that these decisions can be read as being inconsis tent with the application of the realistic probability test to the controll ed substance statute we now address, they are not binding because this case arises in the
Eleventh Circuit. Matter of Anselmo , 20 I&N Dec. 25, 31 (BIA 1989) (“Where we disagree with a court’s position on a given issue, w e decline to follow it outside the court’s circuit.”). Ultimately, the decisi ons of the Supreme Court and the Eleventh Circuit control and support our approach in this case. The Court has broadly stated that there must be a rea listic probability of a State applying a statute beyond the Federal de finition for the State law “to fail the categorical inquiry,” and that whethe r such a probability exists depends on if the State “actually” prosecutes the offense in
a manner broader than the Federal law. 8 Moncrieffe , 569 U.S. at 205–06.

6 The opinion in Lorenzo was originally published as a precedent decision. Lorenzo
v. Sessions , 902 F.3d 930 (9th Cir. 2018). However, it was subsequently w ithdrawn in
Lorenzo v. Whitaker , 913 F.3d 930 (9th Cir. 2019), which was filed concurrently wi th this unpublished memorandum disposition that was substituted on rehearing.

7 More recently, the Ninth Circuit addressed Oregon’s third degree robbery statute and found that although it “theoretically could cover a consensual taking due to its incorporation of theft by deception,” conviction was “unlikely.” Lopez-Aguilar v. Barr

, 921 F.3d 898, 903–04 (9th Cir. 2019). Contrary to the dissentingopinion, which stated that “[a]s long as the application of the statute’s text in the nongeneric manner is not a logical impossibility, the relative likelihood of application t o nongeneric conduct is immaterial,” id. at 908 (Berzon, J., dissenting), the majority found there was “n o realistic probability that Oregon would prosecute such conduct under the statute,” id. at 904. Since the alien had “not presented, and [the court was] unable to fin d, any Oregon case in which a defendant was prosecuted for conduct falling outside the gene ric definition of theft,” the court concluded that the Oregon statute was not overbroad and the alien’s crime qualified as a categorical theft offense. Id.

8 Other circuits have also subsequently applied the realistic prob ability test broadly. For example, the Fifth Circuit has found that although an Oklahoma st atute was “facially overbroad under the categorical approach” because the State’s dr ug schedule contained
two controlled substances that were not on the Federal schedule , the court rejected theCite as 27 I&N Dec. 560 (BIA 2019) Interim Decision #3956

567 Thus, according to Moncrieffe , the realistic probability test is required, even where a State statute is facially broader than its Federal counter part. Id. at 206 (employing that test in determining whether a State firearms st atute that had no exception for antique firearms was applied more broadly than the Federal statute, which included such an exception). For the reasons set forth above, we reaffirm our decision in Matter of

Ferreira , 26 I&N Dec. at 421, which relied on the Supreme Court’s ruling s in Duenas-Alvarez and Moncrieffe. Even if the language of a statute is plain, its application may still be altogether hypothetical and may not satisfy the requirements of Moncrieffe if the respondent cannot point to his own case or other cases where the statute has been applied in the manner th at he advocates. Accordingly, where an alien has been convicted of viol ating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establi sh a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid th e immigration consequences of such a conviction. This approach to the realistic probability test should be applied in any circuit that does not have bindin g legal authority requiring a contrary interpretation. As we emphasized in Matter of Ferreira , “the application of the realistic probability test is necessary to prevent the categorical approa ch from eliminating the immigration consequences for many State drug of fenses.” Id. The categorical approach itself already greatly restricts the i mmigration consequences for aliens convicted of serious and dangerous crim es and “has

alien’s claim that his conviction for a drug-related offense di d not render him deportable. Vazquez v

. Sessions , 885 F.3d 862, 872–74 (5th Cir.), cert

. denied, 138 S. Ct. 2697 (2018) (mem.). Relying on a case in which the Fifth Circuit was sitti ng en banc, the court stated that “the realistic probability test applies whenever the categ orical approach is employed.”

Id. at 866 (citing United States v

. Castillo-Rivera , 853 F.3d 218 (5th Cir.) (en banc), cert. denied , 138 S. Ct. 501 (2017) (mem.)). Thus, while acknowledging thatthe “application of the realistic probability test is largely unsettled,” id. at 873, the court held that it must be applied, even where a State provides penalties for offenses i nvolving substances that are not federally controlled. Id . at 874. It further noted that aperson “must point to an actual state case applying a state statute in a nongeneric manner, eve n where the state statute may be plausibly interpreted as broader on its face.” Id. (quoting Castillo-Rivera , 853 F.3d at 224 n.4). Because the alien “never suggested that the realisti c probability test [was] satisfied,” he “waived the only viable argument.” Id . at 874; see also Morey v. Att’y Gen. of U.S. , 722 F. App’x 239. 241–42 (3d Cir. 2018) (stating that because the alien “failed to identify a single instance of New York prosecuting someone for the sale of [a substance
that was not on the Federal controlled substances schedules], such a prosecution is merely a ‘theoretical possibility’ and does not prevent [the State crime ] from being considered a categorical match for the generic offense” (citing Matter of Ferreira , 26 I&N Dec. at 420–21)).Cite as 27 I&N Dec. 560 (BIA 2019) Interim Decision #3956

568 increasingly led to results that Congress could not have intend ed.” Mathis
v. United States , 136 S. Ct. 2223, 2268 (2016) (Alito, J., dissenting). Without the application of the realistic probability test, the categori cal approach would sweep away the immigration consequences for many more off enses than it already does. See generally Torres v. Lynch , 136 S. Ct. 1619, 1628 (2016) (declining to construe the Act “so as to produce such ‘ha phazard’— indeed, upside-down—coverage”). Our approach is based on Supreme Court precedent and is eminently reasonable because it promotes fairne ss and consistency in the application of the immigration laws by ensuri ng that aliens in different States face the same consequences for drug-related convictions. See Matter of Mohamed , 27 I&N Dec. 92, 96 (BIA 2017) (“[W]hether or not a conviction exists for immigration purposes is a question of f ederal law and is not dependent on the vagaries of state law.” (citation omitte d)). In this case, the respondent has two convictions for possession o f less than 20 grams of marijuana in violation of section 893.13(6)(b) of the Florida
Statutes. These convictions are for violations of a State law relati ng to a controlled substance, as defined in 21 U.S.C. § 802. It is theor etically possible that Florida might apply its statute to conduct that only involves forms of marijuana (such as stalks or sterilized seeds) that are not included in the Federal definition of marijuana at 21 U.S.C. § 802(16). Ho wever, the respondent has not established a realistic probability that the State of Florida would prosecute such conduct, and there is no indication that it has successfully done so. The actual examples of Florida’s prosecuti on of possession of less than 20 grams of marijuana all appear to inv olve controlled substances contained in the Federal definition of marijuana.



### III. CONCLUSION

Although the Florida statute defining marijuana includes substance s that are not in the Federal definition, the respondent has presented no cases that establish a realistic probability that the State would actually apply the statute to an offense involving a substance that was not federally controlled. We therefore conclude that he has been convicted of violating a St ate law relating to a controlled substance, as defined in 21 U.S.C. § 802, and is ina dmissible under section 212(a)(2)(A)(i)(II) of the Act. Since he was convicted of more than one such crime, the respondent is ineligible for a waiver of inadmissibility under section 212(h) and is therefore unable to est ablish eligibility for adjustment of status. Accordingly, the respondent ’s appeal will
be dismissed. 

### ORDER: The appeal is dismissed.