Last month, the Eleventh Circuit Court of Appeals in Said v. U.S. Att'y General, No. 21-12917 (11th Cir. Mar. 24, 2022) held that, for immigration purposes, a conviction for possession of marijuana in violation of Section 893.13(6)(a) of the Florida Statutes was NOT a violation relating to a controlled substance as defined under federal law.
As a result, a conviction under Florida law for possession of marijuana does not stop the clock for purposes of an application for cancellation of removal.
Yes, you read that right. Let me explain ...
Two Different Definitions of Marijuana
What's the Backstory?
Fuad Fares Fuad Said was a lawful permanent resident (green card holder) who was placed in deportation proceedings. In response to the deportation allegations against him, Said filed for a type of relief called "cancellation of removal" which, if granted, would have prevented him from being deported.
To be eligible for cancellation of removal, though, Said must have been a lawful permanent resident for at least 5 years, have continuously resided in the US for at least 7 years, and not have been convicted of an aggravated felony.
Said's problem: the "stop time" rule.
Under the stop time rule, the 7 years of continuous residence end when the person commits any one of several offenses listed in the Immigration and Nationality Act. In Said's case, it was possession of a controlled substance in violation of Section 893.13(6)(a) of the Florida Statutes – namely, marijuana.
The Immigration Judge determined Said's violation of Section 893.13(6)(a) "stopped the clock" before he reached 7 years continuous residence, and therefore he wasn't eligible for cancellation of removal. The Board of Immigration Appeals agreed.
Said then appealed to the 11th Circuit.
Two Different Definitions of Marijuana
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. [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.”
- 21 U.S.C. § 802(16) (emphasis added)
Under Florida law, though, marijuana is defined 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)
In other words, a person could be in violation of Florida's statute simply by possessing a mature stalk of a cannabis plant, but not in violation of the federal statute. For immigration purposes, this is significant.
Why Does This Matter in Immigration Cases?
The 11th Circuit explained that "[b]y the plain language of § 893.02(3), not all substances that it proscribes are federally controlled. Section 893.02(3) includes "all parts" of the marijuana plant while federal law does not … This is a significant divergence, and on its own, is sufficient to establish a realistic probability of broader prosecution under Florida law."
Based on this, the 11th Circuit held that because Said’s conviction was under the broader Florida statute, it could NOT be a conviction of a controlled substance as defined by federal law, and therefore could NOT “stop the clock” with respect to his application for cancellation of removal.
“Instead, Said’s residence 'clock' stopped in 2019 when he was arrested for fleeing and eluding while lights and sirens were activated. At this point in time, Said had lived in the United States continuously for eight years, thereby meeting the residency requirement under INA § 240A. Accordingly, we grant Said’s petition and remand to the BIA."
- Said v. U.S. Att'y General, No. 21-12917, *10 (11th Cir. Mar. 24, 2022)
This ruling by the Eleventh Circuit was an unexpected surprise (and some might even say it was high time), but it opens a whole new set of possibilities for those in deportation proceedings who might now have the option to apply for cancellation of removal.
What if I'm in Deportation Proceedings?
It is important to remember that each is case different, and there is no one-size-fits-all solution. As a result, it is strongly encouraged that you seek the advice of a licensed immigration attorney to help guide you through the process.
If you would like to schedule a free consultation with our office, click here to view our calendar.
Disclaimer: This post is for informational purposes only, and shall not be considered legal advice, or be used as a substitute for competent counsel. No attorney-client relationship exists without a signed agreement.
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