Cohen, Tucker + Ades is a leading immigration law firm that specializes in a wide range of immigration matters, including deportation defense. Our firm is dedicated to keeping clients informed about critical developments in immigration law. That’s why we’re providing a breakdown of the recent Board of Immigration Appeals (BIA) decision in Matter of Felix-Figueroa, a case with significant implications for noncitizens facing removal proceedings due to a state drug conviction.

The “Categorical Approach” and State Drug Convictions

In the U.S. immigration system, a noncitizen can be subject to removal if they’ve been convicted of a controlled substance violation. When a state drug conviction is at issue, immigration courts use what’s known as the “categorical approach” to determine if the state offense is a deportable crime. This involves comparing the elements of the state law under which the noncitizen was convicted to the elements of the federal controlled substance law. If the state law is “categorically broader” than the federal law—meaning it criminalizes more conduct than the federal statute—the conviction may not be a deportable offense.

The “Realistic Probability” Test and the Burden of Proof

In Matter of Felix-Figueroa, the BIA addressed a key issue within the categorical approach: the burden of proof when an individual argues that a state drug statute is overbroad due to differing definitions of a controlled substance.

The BIA held that when the Department of Homeland Security (DHS) proves a noncitizen has been convicted of a state drug offense by “clear and convincing evidence,” it becomes the respondent’s (the noncitizen’s) responsibility to show that the state law is overbroad. This must be done by demonstrating a realistic probability that the state prosecutes substances or isomers that are notincluded in the federal definition of a controlled substance.

The BIA’s decision clarifies that the realistic probability test applies even when a “textual mismatch” exists between the state and federal statutes. This means that simply pointing out that the state law’s text is broader isn’t enough. The noncitizen must provide evidence that the state actually enforces the law in a way that goes beyond the federal definition. The BIA reasoned that a state law’s language may be technically overbroad, but if there’s no realistic chance it would be used to prosecute non-federal substances, the conviction can still serve as a basis for removal. 

It is important to note the BIA’s imposition of the “realistic probability” test is at odds with the long-standing precedent of several circuit courts. These courts have previously held that if the express language of a state statute clearly includes conduct that falls outside the federal definition, a noncitizen does not need to provide further evidence of a “realistic probability” of prosecution.

What This Means for Immigration Law

This decision places a significant burden on the noncitizen to not only identify a discrepancy between state and federal law, but also to provide evidence of how the state law is applied in practice. This could include pointing to other cases where the state prosecuted a specific substance that isn’t federally controlled.

The ruling in Matter of Felix-Figueroa underscores the complexity of immigration law, particularly when it intersects with criminal law. It reinforces that a thorough and fact-specific analysis is required in these cases, and that noncitizens and their attorneys must be prepared to go beyond a facial challenge to a state statute. The need for a strong defense, backed by a comprehensive understanding of both federal and state laws, is more critical than ever.

If you or a loved one are facing removal proceedings based on a state conviction, it’s essential to seek legal counsel from an experienced immigration attorney. Contact us today for a confidential consultation to discuss your options.

Sources:

Matter of Felix-Figueroa, 29 I&N Dec. 157 (BIA 2025) | Board of Immigration Appeals

Da Graca v. Garland, 20-1607 (1st Cir. 2022) | U.S. Court of Appeals for the First Circuit

Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017) | U.S. Court of Appeals for the Second Circuit

Ramos v. U.S. Att’y Gen., 709 F.3d 1066 (11th Cir. 2013) | U.S. Court of Appeals for the Eleventh Circuit

United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014) | U.S. Court of Appeals for the Ninth Circuit