No Retroactivity Where Offense Period Includes Post-Scheduling Conduct; Eleventh Circuit Reaffirms Time-of-Conviction Comparison for § 1182(a)(2)(A)(i)(II)

No Retroactivity Where Offense Period Includes Post-Scheduling Conduct; Eleventh Circuit Reaffirms Time-of-Conviction Comparison for § 1182(a)(2)(A)(i)(II)

Case: Md Zaberul Hasan v. U.S. Attorney General

Court: United States Court of Appeals for the Eleventh Circuit (Non-Argument Calendar; Per Curiam; Not for Publication)

Date: September 22, 2025

Docket No.: 24-12865

Introduction

This immigration case sits at the intersection of removability for controlled-substance convictions and the fast-evolving regulation of synthetic cannabinoids. Petitioner, Md Zaberul Hasan, a lawful permanent resident from Bangladesh, pleaded nolo contendere in Florida state court in October 2013 to two counts under Fla. Stat. § 893.13(1)(c) involving XLR11 (a synthetic cannabinoid) near a school: (1) sale or delivery alleged to have occurred “on or about April 3 through to June 12, 2013,” and (2) possession with intent to sell or deliver “on or about April 3, 2013.”

The legal tension arose because XLR11’s status as a federally controlled substance changed during that spring of 2013. Florida had already treated XLR11 as Schedule I by emergency action in December 2012, but the federal government temporarily placed XLR11 into Schedule I on May 16, 2013. Hasan later traveled abroad in 2016; upon return, DHS charged him as inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) for having been convicted of an offense “relating to a controlled substance.”

Two issues framed the appeal:

  • Timing: Must courts compare a state conviction to the federal drug schedules in effect at the time of the offense conduct or at the time of conviction?
  • Retroactivity: Does applying § 1182(a)(2)(A)(i)(II) based on a conviction where some conduct predated federal scheduling impermissibly attach new legal consequences to past acts under Landgraf’s anti-retroactivity principles?

Summary of the Opinion

The Eleventh Circuit denied Hasan’s petition for review. The court reaffirmed its existing rule that the comparison of a state drug conviction to the federal controlled-substance schedules is conducted by reference to the schedules in effect at the time of conviction, not at the time of removal, and rejected Hasan’s contention that the relevant comparison point is the time of the underlying offense conduct.

On retroactivity, the court did not decide whether it would be impermissibly retroactive to apply § 1182(a)(2)(A)(i)(II) where all offense conduct predated federal scheduling. Instead, it held that there was substantial evidence supporting the BIA’s factual determination that Hasan’s sale offense included post-scheduling conduct (because the charging document alleged a continuous period “through to” June 12, 2013). As a result, no Landgraf problem arose: under either a time-of-offense or time-of-conviction lens, the conviction “related to” a federally scheduled controlled substance.

Key holdings and confirmations:

  • Eleventh Circuit reaffirms the “time-of-conviction” comparison to the federal schedules. See Gordon and Morfa Diaz.
  • No impermissible retroactivity where the record of conviction supports post-scheduling conduct within the charged period.
  • Substantial-evidence deference sustains the BIA’s reading of “through to” as encompassing acts throughout the range, including the end date.
  • The court expressly leaves open the question whether § 1182(a)(2)(A)(i)(II) may be applied when the offense conduct occurs entirely before federal scheduling (cf. Fifth Circuit’s Lopez Ventura).

Analysis

Precedents Cited and Their Influence

  • Gordon v. U.S. Attorney General, 962 F.3d 1344 (11th Cir. 2020): The Eleventh Circuit compared the petitioner’s state conviction to the federal schedules in effect at the time of conviction (2003), not at the time of the removal proceedings. Here, Gordon directly undercuts Hasan’s request for a time-of-offense comparison and confirms the circuit’s “time-of-conviction” reference point.
  • Morfa Diaz v. Mayorkas, 43 F.4th 1198 (11th Cir. 2022): The court again used the federal schedules in effect at the time of the conviction (1996) rather than during later proceedings. Like Gordon, Morfa Diaz reinforces that the Eleventh Circuit’s temporal reference for schedule matching is the conviction date.
  • Landgraf v. USI Film Products, 511 U.S. 244 (1994): The Supreme Court’s two-step retroactivity framework governs whether applying a new legal rule to past events imposes impermissible new liabilities or duties. The Eleventh Circuit invoked Landgraf but avoided deciding retroactivity where all conduct predated scheduling; instead, it held there was post-scheduling conduct in Hasan’s offense period, eliminating the retroactivity concern.
  • Lopez Ventura v. Sessions, 907 F.3d 306 (5th Cir. 2018): The Fifth Circuit held it impermissibly retroactive to treat as a controlled-substance conviction an offense that occurred entirely before the substance was federally scheduled but resulted in a post-scheduling conviction. Hasan leaned heavily on Lopez Ventura. The Eleventh Circuit acknowledged it but expressly declined to resolve whether to adopt or reject its approach in “purely pre-scheduling” scenarios, distinguishing Hasan’s case because his offense period included post-scheduling dates.
  • Chamu v. U.S. Attorney General, 23 F.4th 1325 (11th Cir. 2022); Donawa v. U.S. Attorney General, 735 F.3d 1275 (11th Cir. 2013); Guillen v. U.S. Attorney General, 910 F.3d 1174 (11th Cir. 2018); Lauture v. U.S. Attorney General, 28 F.4th 1169 (11th Cir. 2022): These decisions articulate the categorical and modified categorical approaches. Collectively, they authorize reference to a limited set of conviction documents for divisible statutes. The court relied on this framework to confirm the substance (XLR11) and to read the charging document’s date range.
  • Kazemzadeh v. U.S. Attorney General, 577 F.3d 1341 (11th Cir. 2009); Savoury v. U.S. Attorney General, 449 F.3d 1307 (11th Cir. 2006): These decisions set the appellate posture: review of the BIA’s decision and any IJ reasoning it adopted.
  • Lingeswaran v. U.S. Attorney General, 969 F.3d 1278 (11th Cir. 2020): Provides the “highly deferential” substantial-evidence standard for reviewing BIA fact finding. The court used this to uphold the BIA’s reading that “through to June 12, 2013” encompassed acts after May 16, 2013.
  • Poveda v. U.S. Attorney General, 692 F.3d 1168 (11th Cir. 2012); 8 U.S.C. § 1101(a)(13)(C)(v): Establish that an LPR who has committed certain crimes is treated as an “applicant for admission” upon return from travel abroad, triggering § 1182 inadmissibility analysis.
  • Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011): For returning LPRs charged as inadmissible under § 1182(a)(2), DHS bears the burden of proof by clear and convincing evidence. The BIA applied that standard and found DHS met it here.
  • Jurisdictional authorities: 8 U.S.C. § 1252(a)(2)(C) (criminal-alien bar) and § 1252(a)(2)(D) (retained jurisdiction over legal and constitutional questions); the court exercised jurisdiction over Hasan’s legal arguments.

Legal Reasoning

The decision proceeds in three key steps: jurisdiction and standards, the categorical framework and timing, and retroactivity.

  • Jurisdiction and Standards of Review: Although § 1252(a)(2)(C) strips jurisdiction over petitions by aliens found removable for controlled-substance convictions, § 1252(a)(2)(D) preserves review of legal questions. Hasan’s challenge—whether § 1182(a)(2)(A)(i)(II) applies when some conduct predates federal scheduling—posed a legal question. Legal conclusions were reviewed de novo; factual findings (such as the meaning of the offense date range in the charging document) were reviewed for substantial evidence.
  • Categorical/Modified Categorical Approach and Divisibility: It was undisputed that Fla. Stat. § 893.13(1)(c) is divisible and that Hasan’s convictions involved XLR11. Under the modified categorical approach, the court could consult the charging information and judgment. Those documents established both the substance (XLR11) and the charged time span for the sale count (“on or about April 3 through to June 12, 2013”).
  • Time-of-Conviction Comparison Reaffirmed: Rejecting Hasan’s invitation to adopt a time-of-offense benchmark, the court followed Gordon and Morfa Diaz in comparing the state conviction to the federal schedules as they existed at the time of conviction. XLR11 was on the federal schedules by May 16, 2013, and Hasan’s October 2013 convictions therefore “related to” a federally controlled substance if the conviction documents tied his offense to post-scheduling conduct.
  • Retroactivity under Landgraf: Hasan’s central retroactivity claim was that applying § 1182(a)(2)(A)(i)(II) would attach new legal consequences to pre-scheduling conduct. The court acknowledged Lopez Ventura’s Fifth Circuit analysis but found it unnecessary to resolve that debate because the IJ and BIA permissibly read the sale count’s date range to include post-scheduling conduct. The BIA reasoned that the phrase “through to” denotes acts throughout a continuing, ordered sequence up to and including the end date. Under the “highly deferential” substantial-evidence standard, the Eleventh Circuit held that a reasonable factfinder would not be compelled to reach the contrary conclusion, even though Hasan’s alternative reading (a single act somewhere within the range) was also plausible. Because post-scheduling conduct was part of the conviction’s record, applying § 1182(a)(2)(A)(i)(II) created no Landgraf issue: whether measured at the offense time or conviction time, the offense “related to” a federally scheduled substance.

Impact and Practical Consequences

  • Reaffirmation of the Eleventh Circuit’s temporal rule: Litigants within the Eleventh Circuit should expect courts to assess “controlled substance” status by reference to federal schedules as of the time of conviction. Efforts to shift the benchmark to the time of offense conduct are unlikely to succeed absent en banc or Supreme Court intervention.
  • Limits of Lopez Ventura within the Eleventh Circuit: The court expressly left open whether Lopez Ventura’s retroactivity rule applies to purely pre-scheduling conduct. But by distinguishing Hasan’s case and resolving it on substantial-evidence grounds, the court signaled that many synthetic-cannabinoid cases will turn on the charging language and the record of conviction. The unresolved question remains ripe for future cases with tightly circumscribed pre-scheduling dates.
  • Charging language matters: The decision elevates the practical significance of how charging documents frame dates. Phrases like “on or about” and, critically, ranges stated as “through to [date]” may be read to indicate repeated, continuous, or ongoing conduct through the end of the period. For removal defense, negotiating precise offense dates—especially single-day pre-scheduling dates—can be outcome determinative. Conversely, the government can satisfy its burden by clear and convincing evidence when the record reasonably supports post-scheduling conduct.
  • Substantial-evidence deference is decisive: Where the record can “support or contradict” the BIA’s reading, courts must affirm. That low threshold gives the government a significant advantage when the charging period straddles a scheduling date, even if the alien offers a plausible alternative interpretation.
  • Return-from-travel exposure for LPRs: Under § 1101(a)(13)(C)(v), an LPR with a § 1182(a)(2) conviction is treated as an applicant for admission upon return from abroad. Hasan exemplifies how a preexisting state conviction—paired with federal scheduling during the offense period—can trigger inadmissibility years later upon reentry.
  • Scope of the modified categorical approach: The court’s reliance on the date range in the charging document to resolve a retroactivity question shows that, although underlying factual details are off-limits to prove what happened, courts will use the record of conviction to define the temporal scope of the admitted offense conduct when legality turns on timing.
  • Unpublished but persuasive: Although designated “Not for Publication,” the opinion aligns with published Eleventh Circuit authority (Gordon, Morfa Diaz) and thus carries persuasive weight consistent with existing circuit law.

Complex Concepts Simplified

  • “Relating to a controlled substance” (8 U.S.C. § 1182(a)(2)(A)(i)(II)): An alien is inadmissible if convicted under state or federal law of a crime that has a nexus to a “controlled substance” as defined by the federal Controlled Substances Act (CSA).
  • Controlled Substances Schedules: The CSA lists specific drugs in Schedules I through V. For immigration purposes, the state conviction must involve a substance that appears on these federal lists. XLR11 (a synthetic cannabinoid) was temporarily scheduled federally on May 16, 2013.
  • Categorical vs. Modified Categorical Approach: Courts usually compare the legal elements of the state offense to the generic federal definition without looking at the actual facts (categorical approach). If the statute is “divisible” into multiple crimes with different elements, courts may consult a limited set of conviction records (like the charging information and plea) to identify which version the person was convicted of (modified categorical approach).
  • Divisible Statute: A law that lists alternative elements creating distinct crimes (e.g., different drugs). If divisible, courts may look to the record to see which elements (including which substance) formed the basis of the conviction.
  • Substantial-Evidence Review: A very deferential standard: the court upholds the agency’s factual findings unless a reasonable adjudicator would be compelled to reach the opposite conclusion.
  • Landgraf Retroactivity: A statute or rule is impermissibly retroactive if it attaches new legal consequences to events completed before its enactment. The question here is whether applying inadmissibility based on a conviction involving a substance not federally scheduled at the time of conduct imposes new consequences on past conduct. The Eleventh Circuit avoided deciding the “purely pre-scheduling” scenario because the record showed post-scheduling conduct.
  • Applicant for Admission (for LPRs): A lawful permanent resident who has committed certain crimes and travels abroad is treated as seeking admission upon return, exposing them to inadmissibility grounds—regardless of trip length.
  • Clear and Convincing Evidence: The burden DHS must meet (per BIA precedent) to show that a returning LPR’s conviction falls within § 1182(a)(2). Here, DHS met that burden by pointing to the conviction records showing the offense period extended beyond the scheduling date.

Conclusion

The Eleventh Circuit’s decision in Hasan delivers two principal takeaways. First, it reaffirms the circuit’s time-of-conviction reference point for comparing state drug convictions to the federal schedules under § 1182(a)(2)(A)(i)(II). Second, it holds that there is no Landgraf retroactivity problem when the record of conviction reasonably establishes that some of the offense conduct occurred after the federal scheduling of the substance—here, via a charging period that ran “through to” a post-scheduling date.

The opinion also underscores the practical power of charging language and the deferential substantial-evidence standard in immigration adjudication. For cases involving synthetic cannabinoids and other substances scheduled midstream, defense counsel should scrutinize and, where possible, negotiate offense dates narrowly to pre-scheduling periods. Meanwhile, the Eleventh Circuit leaves unresolved—but signals future litigation over—the Fifth Circuit’s Lopez Ventura question: whether § 1182(a)(2)(A)(i)(II) can be applied when all offense conduct predates federal scheduling. Until that question is squarely presented on a fully pre-scheduling record, Hasan counsels that convictions spanning a scheduling date will sustain inadmissibility without retroactivity concerns.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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