On November 7, 2013, the Eleventh Circuit Court of Appeals issued a published decision in the case of Dwight Dion Donawa v. U.S. Attorney General, No. 12-13526, 2013 U.S. App. LEXIS 22635. The case concerned whether Florida's possession with intent to distribute / sell statute qualifies as an aggravated felony drug trafficking crime for purposes of Immigration Law. The federal appeals court concluded that this offense is NOT an "aggravated felony", which could place many legal residents in jeopardy of removal or deportation proceedings.
As background, on May 13, 2002, the Florida Legislature enacted changes to Florida's Drug Abuse Prevention and Control law. With these changes, Florida became the only state to expressly eliminate knowledge as an element of a drug offense, thereby making the possession of cannabis (with intent to deliver/sell) a strict liability offense. The effect of the change meant that for the state to prove the charge, it was no longer an essential element that the defendant "know" of the illicit nature of the drug.
Criminal defense attorneys need to explore these issues when advising their clients about the potential immigration ramifications The Donawa decision is huge victory for criminal/immigration practitioners because it opens the door for immigration respondents to seek immigration relief that they otherwise would have been ineligible for.
I can now advise some clients that a conviction that falls under the definition of possession with intent to sell/deliver as described in Donowa permits application for discretionary forms of relief. As a criminal defense attorney, I always seek the advice of an immigration practitioner where applicable as there are immigration consequences that flow from violations of the Federal Controlled Substances Act.
For over 30 years Miami Criminal Defense Attorney Jonathan Blecher has defended thousands of otherwise good people charged with serious criminal offenses and getting positive results. Call our office or send us an email to sechedule a freee, no obligation consultation.