In an extremely important case that will surely affect thousands of non-citizens and green card holders, the Eleventh Circuit Court of Appeals has ruled that the Florida Statute813.13 – Possession with Intent to Deliver a Controlled Substance, is not categorically an aggravated felony for immigration purposes. The Court listened to arguments by a Miami immigration attorney who made the point that the statute does not require the requisite “intent” that is necessary under its Federal statute counterpart. This comparison between the State statute and the Federal statute is required under United States immigration law and if the State statute contains elements that are less culpable than the Federal statute, it cannot be deemed to be an aggravated felony.
The result of this decision by the Federal Court is that thousands of immigrants with convictions for, “possession with intent to sell or deliver”, will now be eligible for relief from deportation where they were not before. The reason is because in many cases, but not all, the immigrant will be eligible for a “waiver” called Cancellation of Removal. Cancellation of Removal is not an option for those convicted of an aggravated felony and, thus, persons with convictions for “possession with intent” in the past were not able to apply for this “waiver” and their options to avoid deportation were severely limited.
Our argument has always been this:
Convictions for possession with the intent to sell or deliver, in violation of Fla. Stat. § 893.13(1)(c)(1) does not qualify as an aggravated felony under the “drug trafficking crime” prong of section 101(a)(43)(B) of the Act. A state offense constitutes a drug trafficking offense under the CSA only if it proscribes conduct punishable as a felony under the federal law. Lopez, 549 U.S. at 60. Fla. Stat. § 893.13(1)(a) provides: “it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.” The Federal counterpart to this state law can be found in the CSA, 21 U.S.C. 841(a)(1), which provides that it is “unlawful for any person knowingly or intentionally…to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense a controlled substance.” 21 U.S.C. § 841(a)(1). Both statutes categorize cocaine as a controlled substance. See Fla. Stat. § 893.03; 21 U.S.C. § 802, 812.
Fla. State. § 893.13(1)(c) lacks an explicit mens rea requirement. Federal law makes it illegal “for any person knowingly or intentionally…to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance.” 21 U.S.C. § 841(a)(1) (emphasis added). The Eleventh Circuit stated that “[t]he language of [21 U.S.C. § 841(a)(1)] does not refer, in any way, to willfulness, and as a consequence,…the government only needs to prove that the defendant acted knowingly.” United States v. Tobin, 676 F.3d 1264, 1280 (11th Cir. 2012) (emphasis added). Statutes that require that a defendant acted knowingly, in contrast to those that require that he acted willfully “do not necessarily have any reference to a culpable state of mind or to knowledge of the law.” Bryan, 524 U.S. at 192. Thus, “unless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.” Id. at 193 (emphasis added).
The Eleventh Circuit also held that 21 U.S.C. § 841(a)(1), requires that a defendant “kn[ew] that the substance is a ‘controlled substance.'” United States v. Sanders, 668 F.3d 1298, 1309 (11th Cir. 2012) (citing to U.S. Mejia, 97 F.3d 1391 (1996); See U.S. v. Mejia, 97 F.3d at 1392-93 (following its previous holding in U.S. v. Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990), which held that “to sustain a conviction with intent to distribute a controlled substance, the government need not prove that a defendant had knowledge of the particular drug involved but the government did need to prove that he knew he was dealing with a controlled substance.” (emphasis added).
For purposes of categorical analysis, “the elements of a Federal felony under the CSA are those facts that must be proven to a jury beyond reasonable doubt [by the government] in order to convict.” Matter of Aruna, 24 I&N Dec. 452, 456 (BIA 2008) (citing Shepard, 544 U.S. at 24-26). Knowledge that the substance is a controlled substance is an element of 21 U.S.C. § 841(a)(1). Yet to be convicted under Fla. Stat. § 893.13(1)(A)(1/2), the government does not have to prove beyond a reasonable doubt to a jury that the defendant had knowledge of the illicit nature of the substance, i.e. knowledge of the identity or that the substance was, in fact, a controlled substance. Fla. Stat. § 893.101(2),(3); seeWright, 920 So.2d at 24. When a defendant raises the issue of knowledge of the illicit nature of the substance as an affirmative defense, the “possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance.” Fla. Stat. § 893.101(3); see also Wright, 920 So.2d at 25 (“The statute simply provides that once this defense is utilized, a permissive presumption attaches, allowing the jury to draw an inference from the fact.”); Fla.Std. Jury Instr. (Crim.) 25.7 (“(Defendant) has raised this affirmative defense. However, [jurors] are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if [jurors] find that (defendant) was in actual or constructive possession of the controlled substance.”) The person will thus have to bear the considerable time and expense involved in conducting discovery, calling witnesses, and otherwise crafting a case for their innocence–all while the State, with its vastly superior resources, should be bearing the burden of proving their guilt. [The person] will then hear their jury instructed on the permissive presumption that they knew of the illicit nature of the substance in question. § 893.101(3), Fla. Stat. (2011).
Moreover, the Board of Immigration Appeals has held that an affirmative defense is not an element of the crime. See Matter of Aruna, 24 I&N Dec. 452 457 (BIA 2008) (“[w]e conclude that facts that must be proved by the accused in order to support a reduced sentence do not constitute ‘elements’ of an offense for purposes of categorical analysis”). Thus, Fla. Stat. § 893.13(1)(c)(1) is not an aggravated felony under the “drug trafficking crime” prong under section 101(a)(43)(B) of the Act.
Now, in the Donawa v. Attorney General decision just decided by the Court of Appeals for the Eleventh Circuit, the Court confirms that under the Florida statute for possession with intent to sell or deliver, the immigration authorities cannot charge an aggravated felony and cut off most forms of relief from removal.
Now, those who were ordered deported may file motions to reopen their cases based on this significant decision by the Federal Court. Those currently in removal proceedings can, if they otherwise qualify, ask the immigration court to accept a Cancellation of Removal application.
