Javier Lopez Gonzalez v. Monty Wilkinson, Acting Attorney General of the United States
No. 19-3412
United States Court of Appeals For the Eighth Circuit
March 9, 2021
Submitted: October 23, 2020
Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
KELLY, Circuit Judge
The Immigration and Nationality Act (INA),
The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not.
I.
Javier Lopez Gonzalez is a native and citizen of Mexico. He entered the United States without legal permission in 1994 and again in 1999 and has been living in the country ever since. In 2001, Gonzalez was arrested in Florida for possession of marijuana. He pleaded nolo contendere and was convicted of possession of twenty grams or less of cannabis under
On December 19, 2018, the Department of Homeland Security (DHS) initiated removal proceedings against Gonzalez. See
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien‘s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
On May 14, 2019, an Immigration Judge (IJ) denied Gonzalez‘s application, finding both that Gonzalez had not shown he had been a person of good moral character under subsection (B) and that his Florida conviction served as a disqualifying offense under subsection (C). The IJ ordered that Gonzalez be removed from the United States to Mexico.
Gonzalez appealed the IJ‘s decision to the Board of Immigration Appeals (BIA). In October 2019, the BIA dismissed his appeal, agreeing that the Florida conviction made him ineligible for cancellation. Specifically, the BIA noted that, although the Florida statute criminalized possession of parts of the marijuana plant that are not criminalized under federal law, Gonzalez had not met his burden of showing “a realistic probability that the state would actually apply the language of the statute” to prosecute people solely for possessing these parts of the plant. Because the BIA concluded that Gonzalez was ineligible for cancellation on this basis, it did not address his challenge to the IJ‘s determination on good moral character.
Gonzalez timely filed a petition for review before this court.
We review de novo legal conclusions of the BIA. Jima v. Barr, 942 F.3d 468, 471-72 (8th Cir. 2019). Though deference is due to the BIA‘s constructions of ambiguous provisions of the INA, see Dominguez-Herrera v. Sessions, 850 F.3d 411, 415 (8th Cir. 2017), no such deference is warranted when, as here, the BIA‘s legal analysis is based on its interpretation of Supreme Court precedent. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 642 n.11 (2007) (“Agencies have no special claim to deference in their interpretation of [Supreme Court] decisions.“); Owen v. Bristol Care, Inc., 702 F.3d 1050, 1054 (8th Cir. 2013) (“This court, however, is not obligated to defer to the Board‘s interpretation of Supreme Court precedent under Chevron or any other principle.” (cleaned up)); cf. Lorenzo v. Sessions, 902 F.3d 930, 937 (9th Cir. 2018) (reviewing a BIA decision de novo because the BIA was not entitled to deference for its interpretation of Supreme Court guidance on the categorical approach).
The primary issue before us is whether Gonzalez has been convicted of an offense enumerated in subsection (C) of
To answer this question, we apply the categorical approach, looking “not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the ‘generic’ federal definition.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (internal quotations omitted). This inquiry involves comparing the elements required for both offenses. See Descamps v. United States, 570 U.S. 254, 261 (2013). “If the relevant statute has the same elements as the ‘generic’ [federal] crime, then the prior conviction can serve as [a
In this case, we must compare the federal definition of marijuana to its Florida definition. 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.”
The state statutes underlying Gonzalez‘s prior conviction are
The parties agree that, on its face, the Florida statute covers conduct that the federal one does not. While a person found in possession of only mature stalks of a marijuana plant could not be prosecuted under federal law, he could be prosecuted
The “realistic probability” language comes primarily from two Supreme Court cases: Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and Moncrieffe v. Holder, 569 U.S. 184. In Duenas-Alvarez, where the Supreme Court first introduced and applied its realistic probability language, the petitioner argued that a California statute‘s definition of “theft” was broader than it appeared as written, such that it would apply to conduct beyond that captured by the “generic” federal definition of theft. See 549 U.S. at 190-94. The Court concluded that, to support his against-the-grain reading of the statutory language, the petitioner had to show “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Id. at 193. Because he had not demonstrated that the state courts in fact interpreted the statute in this way, the Court concluded that the state statute was not broader than the federal offense. See id. at 193-94. Moncrieffe reaffirmed this principle, acknowledging that there “must be a realistic probability” that a state statute captures conduct beyond what is criminalized under federal law and describing the realistic probability inquiry as a way to ensure that the categorical approach does not become “an invitation to apply ‘legal imagination’ to the state offense.” 569 U.S. at 191 (cleaned up); see also id. at 194-95 (concluding that because a Georgia controlled substances statute was, on its face, broader than the federal statute, the petitioner had not been convicted of an aggravated felony).
In Ortiz v. Barr, 962 F.3d 1045 (8th Cir. 2020), we addressed whether a Minnesota statute qualified as a crime of moral turpitude under federal law. There we noted that “to constitute a crime involving moral turpitude, the offense must require a culpable mental state and reprehensible conduct.” Id. at 1048 (cleaned up). Yet “the plain language” of the statute at issue “impose[d] no mens rea requirement,” and “an offense that requires general intent only is not considered to be a crime involving moral turpitude.” Id. at 1050. Because there was no ambiguity in the statute, we concluded that “there is a realistic probability that Minnesota would apply its obstruction of legal process statute to cases that lacked the requisite degree of scienter necessary” under federal law. Id. at 1051. The realistic probability was evident from the language of the statute itself, so, unlike in Maldonado, there was no need to provide evidence regarding how Minnesota in fact applied it.
As the First Circuit has observed, the Supreme Court‘s opinion in Duenas-Alvarez makes “no reference to the state‘s enforcement practices” or to how often prohibited conduct is prosecuted. Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017). Rather, the focus of the realistic probability inquiry is on how a state statute might be applied. “The requirement that a defendant show a realistic probability that the
Cases the Supreme Court has decided since Moncrieffe support our approach. In Mellouli v. Lynch, 135 S. Ct. 1980 (2015), for example, the Court examined whether a conviction under Kansas law for possession of drug paraphernalia authorized the petitioner‘s removal under the INA. Id. at 1984. Without relying on or referring to the realistic probability inquiry, the Court applied the categorical approach and held that it did not. The Court reached this conclusion because the Kansas statute did not require any finding that a defendant also possessed a controlled substance, making it broader than the related federal offense. Id. at 1989-91. Because the statute unambiguously applied to possession of drug paraphernalia alone, no additional proof that the petitioner‘s interpretation of the statute was realistic was required. See also Mathis v. United States, 136 S. Ct. 2243 (2016) (holding, without making reference to the realistic probability inquiry, that because a state burglary statute encompassed more conduct than the generic federal offense, the state offense was broader than the corresponding federal one).
The government‘s interpretation invites us to conclude that “realistic probability” means that petitioners must prove through specific convictions that unambiguous laws really mean what they say. Not only is this proposal contrary to our understanding of Duenas-Alvarez and Moncrieffe, but it is also at odds with the categorical approach itself, which asks us to focus on the language of the statutory
Here, the plain language of the Florida statute makes clear that it applies to conduct not covered by the federal statute. The federal statute exempts from prosecution the possession of seeds and mature stalks of the marijuana plant. Because the Florida statute under which Gonzalez was convicted offers no such exemption, it is unambiguously broader than the federal law referenced in
The BIA affirmed the denial of Gonzalez‘s application for cancellation of removal because it concluded that he had not satisfied subsection (C) of
Because the BIA‘s decision relied on a misinterpretation of the realistic probability inquiry, we grant the petition for review, vacate, and remand for further proceedings consistent with this opinion.