Javier Gonzalez v. Monty Wilkinson, 990 F.3d 654

Javier Lopez Gonzalez, a Mexican national, was convicted in Florida in 2001 for possession of 20 grams or less of cannabis under Fla. Stat. § 893.13(6)(b).
DHS initiated removal proceedings in 2018; Gonzalez applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1), which bars relief for certain controlled-substance convictions.
Federal law (21 U.S.C. § 802) excludes mature stalks and seeds from the definition of marijuana; Florida’s definition does not exclude seeds or mature stalks.
The BIA held Gonzalez ineligible for cancellation because he failed to show a “realistic probability” that Florida would prosecute possession of excluded parts (stalks/seeds), despite the Florida statute being broader on its face.
The Eighth Circuit reviewed de novo, applied the categorical approach, and concluded the BIA erred by imposing an additional realistic-probability requirement when the state statute is unambiguously broader; the court vacated and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the categorical approach requires a petitioner to show both that the state statute is broader than the federal offense and that there is a realistic probability the State prosecutes the broader conduct	Gonzalez: showing the statute is broader on its face suffices under the categorical approach	Government: petitioner must also prove a realistic probability that the State actually prosecutes the broader conduct	Held: No. If a statute is unambiguously broader on its face, petitioner need not prove realistic probability; plain statutory language controls
Whether Gonzalez’s Florida cannabis conviction is a disqualifying controlled-substance offense under § 1229b(b)(1)(C)	Gonzalez: Florida statute’s broader definition (including stalks/seeds) means his conviction does not categorically match the federal controlled-substance definition	Government: Gonzalez’s conviction is for a controlled-substance offense making him ineligible for cancellation	Held: The Florida statute is unambiguously broader than the federal definition; the BIA erred in requiring realistic-probability proof; decision vacated and case remanded for further proceedings

Moncrieffe v. Holder, 569 U.S. 184 (explaining the categorical approach and focusing on statutory elements rather than underlying facts)
Descamps v. United States, 570 U.S. 254 (confirming element-by-element comparison under the categorical approach)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (introducing the “realistic probability” formulation for when a statutory term’s reach is disputed)
Mellouli v. Lynch, 135 S. Ct. 1980 (applying the categorical approach where a state statute was unambiguously broader without invoking realistic-probability inquiry)
Mathis v. United States, 136 S. Ct. 2243 (holding a state statute broader than the federal generic offense ends categorical match inquiry)
United States v. Maldonado, 864 F.3d 893 (8th Cir.) (illustrating when realistic-probability evidence may be required for indeterminate statutes)
Ortiz v. Barr, 962 F.3d 1045 (8th Cir.) (explaining realistic-probability application when statute’s mens rea is indeterminate)