Donawa v. United States Attorney General, No. 12-13526: Eleventh Circuit Holds that Possession of Cannabis With Intent to Sell or Deliver Under Florida Statute 893.13(1)(a)(2) is Not Aggravated Felony For Immigration Purposes

by appealattorneylaw

My commitments to local voluntary bar associations have been keeping me busy, but I wanted to take a moment to pass along an opinion that the Eleventh Circuit issued on November 7, 2013.  In Donawa v. Attorney General, No. 12-13526, Donawa appealed an order rendered by the Board of Immigration Appeals which determined that Donawa was not eligible for cancellation of his removal (ie, deportation) because he committed an aggravated felony.  On appeal to the Eleventh Circuit, the Court agreed with Donawa and reversed.  Slip. op., pg. 2.

Obviously, if you defend federal criminal charges, then this 14-page opinion is a must read because of the potential impact on enhancements and penalties under other federal criminal statutes.  However, even if you only practice in State court, you should read it as well, if only for use as possible persuasive authority in other contexts.

The issue addressed by the Court was narrowly framed: whether Donawa’s conviction under section 893.13(1)(a)(2), as amended by section 893.101, is an aggravated felony as a matter of law.  In its analysis, the Court restated the issue as two distinct questions for purposes of the Immigration and Nationality Act, 8 U.S.C. section 1101(a)(43)(B): (1) whether a violation of section 893.13(1)(a)(2) constitutes a “drug trafficking crime” under 18 U.S.C. section 924(c); and, (2) whether a violation of section 893.13(1)(a)(2) falls into the broader category of “illicit trafficking in a controlled substance.”  Slip. op., pgs. 4-5.

In answering the first question in the negative, the Court reasoned that the Florida statute has no mens rea element.  Slip op., pgs. 9-11 (citing State v. Adkins, 96 So. 3d 412 (Fla. 2012)).  The Court declined to answer the second question, whether a violation of section 893.13(1)(a)(2) falls into the broader category of “illicit trafficking in a controlled substance,” because the Board of Immigration Appeals never considered that issue.  Slip op., pg. 13.

The Donawa opinion wraps up with some great language that criminal appeals and criminal defense lawyers will love:

“The BIA erred in finding that, as a matter of law, a violation of Fla. Stat. 893.13(1)(a)(2), as amended by Fla. Stat. 893.101, qualifies as a drug trafficking aggravated felony.  Mr. Donawa and others convicted under this statute may still be able to meet their burden to demonstrate eligibility for cancellation of removal, and should be given a chance to shoulder that burden.  See 8 U.S.C. section 1229a(c)(4)(A) (placing the burden to establish eligibility from relief from removal on the deportable alien.)  Mr. Donawa’s Petition is GRANTED, and we VACATE AND REMAND for further proceedings consistent with this opinion.”