In Chamu v. U.S. Att’y Gen., No. 19-13908 (Jan. 26, 2022) (Branch, Grant, Brasher), the Court, on appeal from a Board of Immigration Appeals (“BIA”) decision, found Mr. Chamu ineligible for cancellation of removal on account of his prior conviction of an offense “relating to a controlled substance (as defined in section 802 of title 21)”–namely cocaine possession under Fla. Stat. §  893.13(6)(a).

Mr. Chamu argued that the Florida statute was overbroad because Florida considers some substances to be cocaine that the federal government, in the federal controlled substance schedules, does not.  He also argued that the Florida statute was overbroad because it covered more states of mind than its federal counterpart–that is, the Florida possession statute alone presumes that a defendant knows a possessed substance is illegal, whereas federal law requires proof of knowledge.

The BIA rejected both of his arguments.  As to his first argument, the BIA accepted that the Florida and federal definitions were not a perfect match, but concluded that the mismatch made no difference because Mr. Chamu had failed to show a “realistic probability that the Florida statute would be enforced more broadly.”

The Court, reviewing the BIA’s determination, applied the categorical approach to determine if § 893.13 is overbroad, and noted that Mr. Chamu’s challenge rested entirely on the facial inconsistencies between the federal and state cocaine statutes–the federal statute omits a subcategory of cocaine isomers that the state statute does not, namely nongeometric diastereomers.  But even accepting that, the Court found that Mr. Chamu’s argument failed because it went no further.  “Even if some chemical compounds have nongeometric diastereomers, nothing in the record suggests that cocaine has any, let alone that they exist in the quantities required for an offender to be prosecuted for possessing them. If cocaine does not have a nongeometric diastereomer, then the two statutes cover exactly the same ground.”

Mr. Chamu bore the burden of proof, and offered no proof to support his allegation that an existing cocaine stereoisomer falls outside the federal definition.  Accordingly, the Court declined to hold that Florida’s statute was broader than its federal counterpart based only on the possibility that it might be so.  Though Mr. Chamu relied on the expert declaration of a chemist, the declaration established only that, as a matter of chemistry, some substances have stereoisomers that are neither optical isomers nor geometric isomers.  The declaration failed to assert the existence of a cocaine stereoisomer that falls outside the federal definition–it gave “no examples of an actual isomer that is a diastereomer but not a geometric isomer of cocaine.”

In so holding, the Court distinguished numerous out-of-circuit cases holding the opposite because those cases involved different state statutory definitions and different burdens of proof.  The Court also noted in footnote 3: “We do not mean to suggest that identifying a specific chemical compound covered by state (and not federal) law is sufficient to show a realistic probability of prosecution. More is likely required. But at least identifying such a substance is a necessary first step.”  As such, while the Court noted it could not hold Florida’s definition of cocaine to be completely consistent with the federal definition, it was holding that Mr. Chamu failed to prove that Florida’s definition covers more substances.

Additionally, the Court rejected Mr. Chamu’s mens rea argument because the federal immigration statutes do not reference mens rea, so the Court, applying the categorical approach, had nothing to compare between the federal and state statutes.  The Court also declined Mr. Chamu’s invitation to add a mens rea requirement to the federal immigration statutes in order to apply the categorical approach.