Written by attorney Kyndra L. Mulder

Whether a Strict Liability Statute can be the basis for Deporting a Permanent Resident (FS 893.13)

The following article is taken from the argument section of an appeal filed by Kyndra L. Mulder, Esquire, with the Board of Immigration Appeals.

A 19 year old boy and permanent resident of the United States is flying from a Florida city to Europe to visit family. He is on his own for the first time in his life. Just before he enters the Border Patrol inspection station, unbeknownst to him, the person behind him slips drugs into his backpack. The drugs are discovered and the boy is arrested and charged with possession of drugs, trafficking and attempted smuggling. The person who the drugs belonged to walks away unnoticed.

Following the immigration court’s line of reasoning in the case Sub Judice and the elements ofFlorida Statute 893.13, the boy in the above scenario would be guilty and deported. Clearly the outcome would be unfair at best but better described as draconian, cruel and a violation of Due Process.

The Respondent through his attorney did not argue to the immigration court that the court or the BIA is obligated to follow the ruling established by the United States District Court, Middle District of Florida. Respondent agrees that the immigration court is not bound by the decision of the United States District Court. What Respondent suggests is that the court should follow the same line of reasoning as the United States District Court inShelton v. Secretary, Department of Corrections, (Exhibit 3). Below are relevant excerpts from theShelton opinion:

· On May 13, 2002, the Florida Legislature enacted changes to Florida’s Drug Abuse Prevention and Control Law, FLA sec. 893.13 as amended by FLA. STAT. 101. By this enactment, Florida became the only state in the nation expressly to eliminate mens rea as an element of a drug offense. Shelton, Exhibit 3 at page 1.

· Not surprisingly, Florida stands alone in its express elimination of mens rea as an element of a drug offense. Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the “unknowing" possession of a controlled substance. See e.g., State v. Bell, 649 N.W. 2d 243, 252 (N.D. 2002)….. State v. Brown, 389 So.2d 48, 51 (La. 1980) (concluding drug possession cannot be a strict liability crime because it would impermissibly criminalize unknowing possession of a controlled substance and permit a person to be convicted “without ever being aware of the nature of the substance he was given."). In stark contrast, under Florida’s statute, a person is guilty of a drug offense if he delivers a controlled substance without regard to whether he does so purposefully, knowingly, recklessly, or negligently. Thus in the absence of a mens rea requirement, delivery of cocaine is a strict liability crime under Florida Law. See FLA. STAT. 893.101, 893.13. Shelton, Exhibit 3 at page 4.

· FLA. STAT. 893.13 is Facially Unconstitutional because it results in a strict liability offense with a harsh penalty, stigma, and overbroad regulation of otherwise innocuous conduct. Shelton, Exhibit 3 at page 8.

The Immigration Judge stated in the case Sub Judice, “…the Court must give full faith and credit to the conviction records that are part of the immigration proceeding." (Exhibit 1 page 4). Looking at the conviction the court should have concluded that the Respondent plead to a strict liability statute. By pleading to the elements of the statute he did not admit nor was it proven that he had a mens rea beyond the strict liability.

It is agreed that the immigration Court is not the place to argue the constitutionality of a criminal statute. However, the immigration court is the place to argue the constitutionality of deportation based upon a conviction under a strict liability statute. InSheltonthe court stressed the harsh penalties and stigma associated with a conviction under Florida’s Drug Abuse Prevention and Control Law. Likewise the immigration court ought to follow the same line of reasoning. The penalty is even greater in immigration court and the stigma worse where a person is forever banned from the country he has lived in since he was a child. Banned from ever seeing his family and exiled to a country he does not know and has not seen since he was 3 years of age. The stigma will follow him. His likelihood of finding employment in the UK is limited if not nonexistent as a result of his record. To a person to this harsh penalty and stigma because he pled to a strict liability statute is also a violation of Due Process sentence, (even though an administrative proceeding, deportation is a lifetime sentence to an immigrant).

An aggravated felony offense must involve a mens rea greater than strict liability or negligence as applied to any criminal offense. Leocal v. Ashcroft, 125 S. Ct. 377 (Nov. 9, 2004). The Supreme Court emphasized in Staples v. United States, 511 U.S. 600 at 616 (1994) (a case involving possession of firearms) that a potentially harsh penalty attached to a statutory violation supports a mens rea requirement.

In Johnson v. United States, 528 F.3d 1318, (October 6, 2009) the court held that, “The Florida felony offense of battery by actually and intentionally touching another person does not have as an element the use…of physical force against the person or another, and thus does not constitute a “violent felony." Similarly, in the case Sub Judice, the Florida Drug Statute does not require knowing intent and does not constitute a deportable drug offense or an aggravated felony.

In Leocal v. Ashcroft, 125 S.Ct. 377 (Nov. 9, 2044) the court unanimously held that a Florida conviction of driving under the influence and accidently causing serious bodily injury did not constitute an aggravated felony as a crime of violence for the purposes of triggering deportation since the offense did not have a mens rea requirement in excess of strict liability or negligence(emphasis added).

The same reasoning as used in Leocal, Johnson, Staples and Shelton,applies to the case Sub Judice. Where the Respondent pled to a strict liability statute his conviction does not constitute a drug crime or aggravated felony for the purposes of triggering deportation. It would be a violation of Due Process to deport the Respondent for the conviction.

As stated by the immigration court, the court must give full faith and credit to the conviction record of the defendant. Where the record indicates that the respondent pled to a strict liability statute, the court should not have found that the conviction triggers deportation as a drug offense or an aggravated felony. To do so is a violation of Due Process.

Our immigration system is not as harsh and draconian as to separate a person from his family and send him to a country he does not know as a result of a plea to a strict liability statute. Clearly, for a conviction to constitute a deportable offense it requires more than strict liability as an element of mens rea.

Additional resources provided by the author Kyndra L. Mulder, Esquire The Mulder Law Office, P.A. 4110 Southpoint Boulevard, Suite 101 Jacksonville, Florida 32216 Telephone: (904)296-7702 Fax: (904) 281-9108 Email: [email protected]

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