The Eleventh Circuit has ruled that some convictions under Florida’s possession statute are deportable offenses. The court ruled that the statute was divisible, necessitating a look at the substance a determination of the substance involved. The case is Guillen v. U.S. Atty. Gen.
Guillen is a lawful permanent resident with a criminal history. He was convicted of possession of cocaine under Florida Statute 893.13(6)(a) The Government placed him in removal proceedings and charged him with deportability under 8 U.S.C. § 1227(a)(2)(B)(i) for an “offense relating to a controlled substance.” He applied for Cancellation of Removal, which the immigration judge denied on discretionary basis. The immigration judge reasoned that even though he qualified, his criminal record was lengthy.
He appealed the decision to the Board of Immigration Appeals adding the argument that his conviction was not a deportable offense. He argued that the Florida Statute 893.13(6)(a) was overbroad since the list of controlled substances did not match the federal list. The Board of Immigration Appeals dismissed the appeal ruling that the statute was divisible. It added that since Guillen was convicted for possession of cocaine, the offense related to a controlled substance. The Board then reviewed the immigration judge’s discretionary denial and upheld it.
Guillen appealed to the Eleventh Circuit arguing the Board erred in its ruling. Guillen argued that since the federal and the state controlled substance lists did not match he was not deportable. The Government conceded that the schedules did not match, but argued that the court should uphold the Board‘s decision since the statute is divisible. The court reasoned that the statute was divisible since it gave several ways to violate the statute, which hinged on the actual substance. This, in the court’s opinion, made the critical difference in the case and made the statute deportable, depending on the substance involved.
I think the court misapplied the Supreme Court’s decision in Mathis in this case. The court built the decision on the Supreme Court’s decision in Mathis. The court distinguished its decision from Mathis by reasoning that the Florida Statute basically had the same elements but different means. distinguishing it from the Iowa statute in Mathis. However, the statute in this case was in fact identical to the statute in Mathis: the statute in fact had different elements, i.e. if you possess an item not on the federal list, you did not violate the statute.
I hope that the Supreme Court reviews this case in the near future. Call us if you are in removal proceedings because of a criminal conviction.