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Media Alerts - Donawa v. United States Attorney General
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November 20, 2013
  Donawa v. United States Attorney General
Headline: Eleventh Circuit holds conviction for possession of cannabis with intent to sell or deliver under Florida law is not an aggravated felony for purposes of discretionary cancellation of removal.

Area of Law: Immigration, Criminal

Issue(s) Presented: Whether a conviction under Florida law for possession with intent to sell or deliver is an aggravated felony for purposes of federal law, thus precluding discretionary cancellation of removal.

Brief Summary: Petitioner appealed the decision of the BIA finding him ineligible for the discretionary cancellation of his removal based on the contention that his conviction for possession with intent was not a drug trafficking aggravated felony. The Eleventh Circuit agreed based on a finding that the Florida statute lacked the knowledge requirement found in the corresponding federal drug statute.

Extended Summary (if applicable): After being convicted in state court for possession of cannabis with intent to sell or deliver under Florida Statute section 893.13(1)(a)(2), the Department of Homeland Security began removal proceedings against Dwight Donowa, a native and citizen of Antigua. The Immigration Judge found him removable and ineligible for cancellation of removal proceedings based on his conviction for an aggravated felony. The Board of Immigration Appeals affirmed the decision.

On appeal, Donowa contended that he was eligible for discretionary cancellation of removal because his conviction was not a drug trafficking aggravated felony as a matter of law. After applying the categorical approach and comparing the elements of section 893.13(1)(a)(2), Florida Statutes, and the corresponding federal statute, 21 U.S.C. ยง 841 (a)(1), the court agreed. In reaching this conclusion, the court noted that Florida law treats the lack of knowledge of the nature of the substance as an affirmative defense of the crime whereas the federal statute includes knowledge as an element the government must prove. Therefore, the court remanded to allow Donowa an opportunity to assert his eligibility for cancellation of removal.

To view full opinion:

Panel (if known): Martin, Jordan and Suhrheinrich (United States Circuit Judge for the Sixth Circuit, sitting by designation).

Argument (if known): October 11, 2013

Date of Issued Opinion: November 7, 2013

Docket Number: 12-13526

Decided: Petition Granted, Vacated and Remanded

Case Alert Author: Nicholas Chotos, Ilan Kairy, James Ryan, Inalvis Zubiaur

Counsel (if known): Michael Vastine, counsel for Petitioner
Ernesto Molina, counsel for Respondent

Author of Opinion: Martin

    Posted By: Gary Kravitz @ 11/20/2013 05:04 PM     11th Circuit  

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