The Board of Immigration Appeals has determined that “[a] statute’s textual overbreadth does not always unambiguously establish that there is a realistic probability that the State would apply the statute to conduct falling outside the Federal definition of an offense.” “Thus, we conclude that once DHS establishes the existence of a State drug conviction by clear and convincing evidence, a respondent who argues that a State conviction is categorically overbroad based on differing substance or isomer definitions has the burden of demonstrating a realistic probability that the State prosecutes substances falling outside the Federal definition of a controlled substance.”
This decision turns burdens of proof on their head, forcing a lawful permanent to prove he’s not deportable, rather than forcing the Department of Homeland Security to prove he is.
The full text of Matter of Felix-Figueroa can be found here: