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Possession With Intent to Sell Is Not an Aggravated Felony With Automatic Removal - Donawa v. Attorney General

Certain U.S. criminal charges are very serious for non-citizens of the United States because they make the person ineligible to fight an order of removal from the country. This includes crimes deemed aggravated felonies or aggravated drug trafficking felonies. However, it’s not always clear what counts as an aggravated drug trafficking felony, especially when immigration courts—which are federal—are deciding about state-law convictions. That was the situation in Donawa v. U.S. Attorney General, in which Dwight Dion Donawa was convicted in Florida of possession of marijuana with intent to sell. The immigration courts concluded that this made Donawa ineligible for removal under the law, but the Eleventh Circuit disagreed, giving him a chance to fight the removal.

Donawa is from Antigua and is a lawful permanent resident who entered the United States in 1985. In 2009, a Florida court convicted him of possession of drug paraphernalia and possession of cannabis with intent to sell. The Department of Homeland Security began removal proceedings against him in 2011, saying he was eligible for removal because he’d been convicted of a controlled substance crime and an aggravated felony. Donawa disputed both charges, but also said that even if he was removable, he was eligible to fight the removal. The immigration judge disagreed, finding that the possession with intent to sell crime made him ineligible to fight removal because it’s an aggravated drug trafficking felony. The Board of Immigration Appeals affirmed the decision without adopting its reasoning. Donawa appealed to the Eleventh Circuit.

On appeal, the only issue was whether Donawa was eligible to fight his removal, and thus whether his conviction was for an aggravated drug trafficking felony, as a matter of law. For this purpose, the court said, an “aggravated felony” means “illicit trafficking in a controlled substance… including a drug trafficking crime.” The Eleventh Circuit concluded that the Florida statute of Donawa’s conviction was not such a crime. The “least of the acts criminalized” by the Florida statute doesn’t necessarily violate federal drug trafficking laws, because a person may be convicted in Florida without knowing the nature of the substance he or she is trafficking. In fact, the court noted, there’s no evidence that Donawa raised a nature-of-the-substance defense in court, which would benefit him even under a modified categorical approach. The Eleventh then declined to decide whether the crime was an aggravated drug trafficking felony, saying there was no record evidence to guide it. It vacated and remanded to the BIA for more proceedings.

Drug crimes are some of the most common criminal charges requiring non-citizens to fight immigration removal or deportation proceedings. As this case shows, immigration judges have wide latitude to decide whether a particular criminal conviction makes your removable—or makes you ineligible to fight removal. Similarly, authorities can remove you from the United States for committing a “crime of moral turpitude,” a category that’s confusing even to immigration judges and often ends up in appeals courts. Courts have held that this includes controlled substances crimes, however. If you’re an immigrant and you’re facing charges that could put your legal status in jeopardy, do not wait to call Seltzer Mayberg, LLC for help.

Based in Miami, Seltzer Mayberg, LLC, represents clients facing criminal charges throughout the state of Florida. If you’re accused of an immigration crime or any crime that puts your status at risk, call us today for a free, confidential consultation. We answer the phone 24 hours a day and seven days a week. You can reach us at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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