CA11 on Controlled Substances: Said v. Garland

Said v. Garland

"[W]e conclude that the BIA and IJ erred in finding that Said was ineligible for cancellation of removal. By the plain language of § 893.02(3), not all substances that it proscribes are federally controlled. Section 893.02(3) includes “all parts” of the marijuana plant, while federal law does not. For instance, federal law does not include the mature stalks of the marijuana plant or fiber produced from such stalks. 21 U.S.C. § 802(16). This is a significant divergence, and on its own, is sufficient to establish a realistic probability of broader prosecution under Florida law. ... Because a violation of Fla. Stat. § 893.13(6)(a) did not relate to a controlled substance as defined under federal law, Said’s conviction under this statute in 2017 did not affect his ability to accrue the required seven years of continuous eligibility necessary for cancellation of removal. Instead, Said’s residence “clock” stopped in 2019 when he was arrested for fleeing and eluding while lights and sirens were activated. At this point in time, Said had lived in the United States continuously for eight years, thereby meeting the residency requirement under INA § 240A. Accordingly, we grant Said’s petition and remand to the BIA. PETITION GRANTED AND REMANDED."

[Hats off to David Stoller!]