No. 19-3412 ___________________________

Javier Lopez Gonzalez

Petitioner

v.

Monty Wilkinson, Acting Attorney General of the United States 1

Respondent ____________

Petition for Review of an Order of the Board of Immigration Appeals ____________

Submitted: October 23, 2020 Filed: March 9, 2021 ____________ Before BENTON, SHEPHERD, and KELLY, Circuit Judges. ____________ KELLY, Circuit Judge

The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., allows the Attorney General to cancel the removal of certain noncitizens. See id. § 1229b(b)(1). Among the requirements for cancellation eligibility is that the

1 Monty Wilkinson is now Acting Attorney General of the United States and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c). noncitizen has not been convicted of any of a number of specified federal offenses. Id. § 1229b(b)(1)(C). To determine whether a petitioner’s state conviction should be considered the equivalent of one of these federal offenses, we apply what is known as the categorical approach, which has us compare the statutory elements of the state offense with those of the analogous federal offense to see whether they match.

The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not.

I.

Javier Lopez Gonzalez is a native and citizen of Mexico. He entered the United States without legal permission in 1994 and again in 1999 and has been living in the country ever since. In 2001, Gonzalez was arrested in Florida for possession of marijuana. He pleaded nolo contendere and was convicted of possession of twenty grams or less of cannabis under Fla. Stat. § 893.13(6)(b).

On December 19, 2018, the Department of Homeland Security (DHS) initiated removal proceedings against Gonzalez. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1229a(e)(2)(A). In response, Gonzalez filed an application for cancellation of removal under 8 U.S.C. § 1229b(b)(1), which provides:

The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien –

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

-2- (B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

On May 14, 2019, an Immigration Judge (IJ) denied Gonzalez’s application, finding both that Gonzalez had not shown he had been a person of good m