Fuad Fares Fuad Said v. U.S. Attorney General
28 F.4th 1328 (2022)
Rule of Law:
When applying the categorical approach to determine if a state drug conviction relates to a federally controlled substance for immigration purposes, a 'realistic probability' that the state statute is broader than its federal analogue can be established by the plain language of the statute itself, without needing to point to an 'exemplar prosecution,' if the statutory language creates a significant and non-hypothetical divergence.
Facts:
- Fuad Fares Fuad Said was convicted of violating Fla. Stat. § 893.13(6)(a) (possession of marijuana) in 2017.
- Said was arrested in 2019 for fleeing and eluding while lights and sirens were activated.
- By the time of his 2019 arrest, Said had lived continuously in the United States for eight years after being admitted for permanent residence.
Procedural Posture:
- Fuad Fares Fuad Said filed an application for cancellation of removal.
- An Immigration Judge (IJ) denied Said's application.
- Said appealed the IJ's decision to the Board of Immigration Appeals (BIA).
- The BIA affirmed the IJ's denial of Said's application for cancellation of removal.
- Said filed a petition for review of the BIA's final order with the United States Court of Appeals for the Eleventh Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a conviction under Florida's marijuana possession statute (Fla. Stat. § 893.13(6)(a)) always relate to a controlled substance as defined by federal law (21 U.S.C. § 802(16)), such that it prevents an individual from accruing the necessary period of continuous residence for cancellation of removal, where the plain language of the state statute includes parts of the cannabis plant explicitly excluded by federal law?
Opinions:
Majority - Tjoflat
No, a conviction under Florida's marijuana possession statute does not always relate to a controlled substance as defined by federal law, because the plain language of the Florida statute is significantly broader than the federal definition, thereby establishing a realistic probability of broader prosecution without the need for an 'exemplar prosecution.' The court applies the categorical approach to determine whether a state conviction constitutes an offense relating to a controlled substance, which involves comparing the elements of the state statute to the generic federal definition. Federal law (21 U.S.C. § 802(16)) explicitly defines marijuana to exclude 'the mature stalks of such plant, fiber produced from such stalks,' and other specific parts. In contrast, Florida law (Fla. Stat. § 893.02(3)) defines marijuana as 'all parts of any plant of the genus Cannabis.' This constitutes a 'significant divergence' because Florida's definition facially includes parts of the plant, such as mature stalks, that federal law expressly excludes, and these parts are not hypothetical but actually exist. This significant difference in statutory language alone is sufficient to establish a 'realistic probability of broader prosecution' under Florida law, as outlined in Gonzalez v. Duenas-Alvarez and clarified by Ramos v. U.S. Att’y Gen., which holds that an offender need not 'point to a case' when the statutory language itself creates this realistic probability. The court distinguishes this from cases like Chamu where the petitioner presented hypothetical differences or non-existent forms of substances. Therefore, the BIA and IJ erred in finding Said ineligible for cancellation of removal because his 2017 conviction did not relate to a federally controlled substance and thus did not trigger the stop-time rule for continuous residence. Said had accrued eight years of continuous residence by the time his residence clock stopped in 2019 due to his arrest for fleeing and eluding, thereby meeting the residency requirement for cancellation of removal.
Analysis:
This case significantly clarifies the application of the 'realistic probability' standard within the categorical approach, particularly for drug offenses. It reinforces that petitioners are not always required to produce an 'exemplar prosecution' to demonstrate statutory overbreadth when the plain language of the state statute clearly and significantly diverges from the federal definition, especially regarding actually existing substances. This lowers the burden of proof for non-citizens seeking cancellation of removal who have state drug convictions that are facially broader than their federal counterparts, impacting future immigration cases involving statutory comparisons.
