Fifth Circuit Applies Realistic Probability Test to Texas Drug Statutes

The Fifth Circuit acknowledged that Texas criminalizes actions related to 49 substances not found in the Controlled Substances Act, but determined that the petitioner did not demonstrate a reasonable probability that Texas prosecutes offenses related to these substances. The court further determined that the agency has the authority to determine, on a case-by-case basis, that a non-aggravated felony is a particularly serious crime.

The full text of Vetcher v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60449-CV0.pdf

BIA Applies Realistic Probability Test to Drug Conviction

The Board of Immigration Appeals (BIA) has determined that “where an alien has been convicted of violating a state drug statute that includes a controlled substance that is not on the federal controlled substances schedules, he or she must establish a realistic probability that the state would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction.” In the instant case, the respondent argued that a Florida conviction for possession of marijuana did not render him inadmissible because Florida’s definition of marijuana is broader than the federal definition. “The respondent has also not presented any cases where a defendant was successfully prosecuted under Florida law for an offense that involved only a form of marijuana that was not prohibited by 21 U.S.C. § 802(16).” As such, the BIA found that the respondent had not established a realistic probability that Florida prosecutes marijuana offenses that fall outside the federal definition of marijuana.

The full text of Matter of Guadarrama can be found here:

https://www.justice.gov/eoir/page/file/1171626/download