How the BIA Has Applied the Circumstance-Specific Approach from Nijhawan v. Holder to Different INA Provisions

 

Introduction

On June 15, 2009, the Supreme Court of the United States issued a decision titled Nijhawan v. Holder, 129 S.Ct. 2294 (2009) [PDF version]. In Nijhawan, the Court held that adjudicators must apply the “circumstance-specific approach” to determining whether the commission of a fraud or deceit crime resulted in the loss of at least $10,000 to the victim(s), which is a requirement of an immigration aggravated felony under section 101(a)(43)(M)(i) of the Immigration and Nationality Act (INA). In the context of section 101(a)(43)(M)(i), the decision means that adjudicators may look to the facts of the crime as established by the record of conviction to determine monetary value of the loss incurred by the victim(s) where the statute of conviction does not specify a $10,000 threshold of monetary loss to the victim(s). More broadly, the Supreme Court held that this same principle applies to immigration statutes where a term refers to conduct involved in commission of the offense rather than to an element of the offense.

Before reading this article, please see our comprehensive article on the Nijhawan decision, which discusses it in detail [see article]. In this article, we will examine Board of Immigration Appeals (BIA) published decisions that have examined how the Nijhawan precedent applies to different immigration provisions. Please see our separate companion article to read about a selection of interesting published Federal circuit court opinions that have examined how Nijhawan applies to different immigration statutes [see article].

Circumstance-Specific Approach

Overview of BIA Decisions Discussing Nijhawan

The BIA has expressly cited to Nijhawan in 16 published decisions since Nijhawan was issued. In the following three sections, we will examine how the Board has applied Nijhawan to a wide selection of immigration aggravated felony and deportability statutes. Please note that some of the BIA decisions that we discuss have been abrogated on other grounds by intervening Supreme Court decisions. Where relevant, we will note the intervening decision and what it means for the BIA decision going forward. Nearly all of the decisions discuss the related “categorical approach.” To learn more about the categorical approach, please see our index of articles discussing its current application to immigration law [see index].

We have full articles on several of the BIA decisions discussed in this article. Please see our full articles, where indicated, to learn more about specific decisions that may be of interest. You may see our full selection of articles on BIA decisions in our comprehensive index [see index].

Finally, please note that the concepts expressed in the Nijhawan decision did not originate there. The Board applied similar principles in decisions pre-dating Nijhawan. However, this article will focus exclusively on post-Nijhawan decisions. It is by no means an exhaustive list of every statute where the circumstance-specific approach, as articulated in Nijhawan, may be applicable.

We will update this decision as the Board issues more published decisions relevant to the subject.

Decisions Where BIA Found that Circumstance-Specific Approach Applies

These decisions involve decisions where the Board found that the circumstance-specific approach applied to a statute, with specific reference to or reliance upon Nijhawan. In each of these decisions, the Board determined that the categorical approach applies to determine if the elements of the alien's conviction align with the relevant immigration provision. However, the Board also determined that the circumstance-specific approach applies to those aspects of the immigration provision which set forth the circumstances of commission, rather than elements, of the offense.

  • Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016)
    Statute: INA 237(a)(2)(E)(i) — Statute renders deportable “[a]ny alien who at any time after admission is convicted of a crime of domestic violence…” The question was whether the circumstance-specific approach applied to determining if the relationship between the perpetrator and the victim was domestic in nature.
    See decision [PDF version] and [see article]

The Board held that the circumstance-specific approach set forth in Nijhawan “is properly applied in analyzing the domestic nature of a conviction to determine if it is for a crime of domestic violence.” 26 I&N Dec. at 753. It reasoned that the domestic nature of the offense was one of the “factual circumstances in which the crime was committed.” Id. at 752. However, it is important to note that the circumstance-specific approach is limited in this context to ascertaining the domestic nature of the offense, and not, for example, whether the offense was a “crime of violence” as defined in 18 U.S.C. 16 (a separate requirement for an offense to fall under section 237(a)(2)(E)(i)).

  • Matter of Garza-Oliveras, 26 I&N Dec. 736 (BIA 2016)
    Statute: INA 101(a)(43)(T) — Aggravated felony “offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which the sentence of 2 years' imprisonment or more may be imposed.”
    See decision [PDF version] and [see article]

In Matter of Garza-Oliveras, the BIA concluded that the “circumstance-specific” approach set forth in Nijhawan is applicable in determining if the failure to appear was “(1) pursuant to a court order (2) to answer to or dispose of a charge of a felony (3) to which a sentence of 2 years' imprisonment or more may be imposed.” 26 I&N Dec. at 739-40. However, the initial question of whether the offense relates to an alien's failure to appear before a court is governed by the categorical approach. 26 I&N Dec. 739.

  • Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014)
    See also: Matter of Davey, 26 I&N Dec. 37 (BIA 2012)
    Statute: INA 237(a)(2)(B)(i) — Specifically, whether an alien's conviction or violation of (or conspiracy or attempt to violate) a law or regulation pertaining to a Federally controlled substance related to “a single offense involving possession for one's own use of 30 grams or less of marijuana,” which is an exception from this deportability ground.
    See decision [PDF version]

The Board held that the circumstance-specific approach, rather than the categorical approach, applies when determining whether an alien's offense was “a single offense involving possession for one's own use of thirty grams or less of marijuana…” 26 I&N Dec. at 411. Interestingly, this decision reaffirmed a Board decision issued two years prior titled Matter of Davey, 26 I&N Dec. 37 (BIA 2012) [PDF version]. Matter of Davey had been called into question by an intervening decision of the Supreme Court in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) [PDF version], which mandated the categorical approach for section 237(a)(2)(A)(iii) [see section]. However, the Board held that it “remain[ed] convinced that the language of the 'possession for personal use' exception most naturally invites a circumstance-specific inquiry, not a categorical one.” The Board had previously reached the same conclusion on the “30 grams or less of marijuana” issue in Matter of Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) [PDF version], abrogated on other grounds by Mellouli v. Lynch, 135 S.Ct. 1980, 1982 (2015) [PDF version].

  • Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014)
    Statute: INA 204(a)(1)(A)(viii)(I) — “Adam Walsh Act” provision preventing the approval of a family-sponsored immigrant visa petition filed by an individual who was convicted of a “specified offense against a minor.” Please see our article on the Adam Walsh Act as applie d to family-sponsored immigrant visa petitioners to learn more [see article].
    See decision [PDF version] and [see section]

The Board held that the language and structure of the Adam Walsh Act “invite a circumstance-specific inquiry into both the age of the victim and the conduct underlying the offense.” 26 I&N Dec. 309. It reasoned that the first five offenses in the definition of “specified offense against a minor” (see 42 USC 16911(7)(A)-(E)) “are not generally limited to offenses against minors.” Id. The Board stated that the categorical approach “provides a useful starting point for assessing whether an offense is a 'specified offense against a minor' under the Adam Walsh Act…” To see how the Board continues to follow this decision, please see the relevant section on our article on Matter of Calcano de Millan, 26 I&N Dec. 904, 910-11 (BIA 2017) [PDF version] [see article].

  • Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), abrogated on other grounds by Descamps v. United States, 133 S.Ct. 2276 (2013)
    Statute: INA 101(a)(43)(K)(ii) — This provision defines as an immigration aggravated felony the transportation for the purpose of prostitution (based on specific Federal statutes) “if committed for commercial advantage.”

First, it is important to note that Matter of Lanferman, which dealt primarily with determining when the modified categorical approach may be used, is no longer good law. Several circuits, and the Board itself, have recognized the decision as having been abrogated by the Supreme Court's decision in Descamps, which we cover in a full article [see article]. However, we include it in this section because two of its notes on the circumstance-specific approach are unaffected by Descamps. Please see our second subsection on this case for an example of a statute not subject to the circumstance-specific approach [see section].

The Board noted with respect to section 101(a)(43)(K)(ii), that the question of whether an alien transported someone for prostitution for commercial advantage is subject to the circumstance-specific approach set forth in Nijhawan. 25 I&N Dec. at 727 n.4. The Board asserted this with reference to the Nijhawan decision itself, which cited to section 101(a)(43)(K)(ii) in dicta as an example of a statute where the circumstance-specific approach applies. Here, it is important to note that the question of whether the conviction is “transportation for the purpose of prostitution” is subject to the categorical analysis.

  • Matter of Islam, 25 I&N Dec. 637 (BIA 2011)
    Statute: INA 237(a)(2)(A)(ii) — Deportability provision for two or more crimes involving moral turpitude. The question in this case involved the exception for when the two are more crimes of moral turpitude “arise[] out of a single scheme of criminal misconduct.”
    See decision [PDF version]

Although the determination of whether an offense is a crime involving moral turpitude is governed by the categorical and modified categorical approaches [see section], the question of whether two or more crimes involving moral turpitude arise out of a single scheme of misconduct instead “requires a 'circumstance-specific' inquiry in which all relevant evidence may be consulted.” 25 I&N Dec. at 641. In short, whether the offenses are crimes involving moral turpitude is governed by the categorical approach, but whether their commission arose out of a single scheme of criminal misconduct is governed by the circumstance-specific approach, where evidence in the record of conviction(s) may be consulted.

Decisions Where Similar Analysis Applies to Statutes Where Categorical Approach is Inapplicable

The following two decisions involve statutes where the Board found the categorical approach to be completely inapplicable. As explained below, the Board noted that the circumstance-specific approach can only be applied to a statute where the categorical approach applies in part. However, both of the following decisions defined circumstances where similar analysis to the circumstance-specific approach set forth in Nijhawan applies even though the categorical approach is inapplicable to the statutes in question.

  • Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017)
    Statute: INA 237(a)(2)(E)(ii) — This provision renders deportable an alien who violates a protection order. The question was whether an inquiry into section 237(a)(2)(E)(ii) is governed by the categorical approach.
    See decision [PDF version] and [see article]

The Board held that an inquiry into section 237(a)(2)(E)(ii), where an alien was convicted of violating a protection order, is not governed by the categorical approach. 27 I&N Dec. 176-77. The Board instructed immigration judges to consider “probative and reliable evidence” about the protection order. Id. at 177. However, the Board also held that the circumstance-specific approach also did not apply, stating that the circumstance-specific approach “applies only when a portion of a criminal ground of removability is not subject to the categorical approach…” Id. at 176. The statute at issue in Matter of Obshatko was not subject to the categorical approach in its entirety. Id. What difference did it make? Perhaps none, according to the Board, which noted that “in practical terms, the result in this case may be the same under the circumstance-specific approach, since both the specific circumstances surrounding an alien's violation and what a court has 'determined' regarding that violation may be established through any reliable evidence.” Id.

  • Matter of Tavarez-Peralta, 26 I&N Dec. 171 (BIA 2013)
    Statute: INA 237(a)(4)(A)(ii) — Any alien who engages in “any other criminal activity which endangers public safety…” is deportable.
    See decision [PDF version]

In this case, the respondent was found to be removable after the BIA determined that his conviction in violation of 18 U.S.C. 32(a)(5) fell under section 237(a)(4)(A)(ii) of the INA. However, the Board made clear that the categorical approach does not apply to section 237(a)(4)(A)(ii). 26 I&N Dec. at 174 n.4. Instead, citing directly to Nijhawan, the Board explained that other evidence may be used in the section 237(a)(4)(A)(ii) inquiry because a conviction is not required.

Decisions Where the BIA Found that the Circumstance-Specific Approach is Inapplicable

In the following decisions, the Board found that the circumstance-specific approach did not apply to the question at hand.

  • Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015), vacated and remanded by Esquivel-Quintana v. Sessions, 697 Fed.Appx. 448 (6th Cir. 2017)
    Statute: INA 101(a)(43)(A) — Section 101(a)(43)(A) covers “sexual abuse of a minor.” Matter of Esquivel-Quintana was concerned with when a statutory rape offense constitutes “sexual abuse of a minor.”
    See decision [PDF version] and [see article]

Matter of Esquivel-Quintana has been vacated as a result of the Supreme Court decision in Esquivel-Quintana v. Sessions, 137 S.Ct. 1562 (2017) [PDF version], which we cover in detail on site [see article]. While Matter of Esquivel-Quintana has been vacated, its finding of the lack of applicability of the circumstance-specific approach to section 101(a)(43)(A) is in accord with the Supreme Court decision in Esquivel-Quintana v. Sessions, and it therefore remains good law today.

The Board assumed in its decision that it was “precluded from applying a 'circumstance-specific' approach in relation to section 101(a)(43)(A) of the [INA] to determine the ages of the victim and the perpetrator and any age differential between them.” 26 I&N Dec. at 472 n.2. The Board also stated that in Nijhawan the Court “noted, albeit in dicta, that section 101(a)(43)(A) refers to the 'generic crimes' of 'murder, rape, or sexual abuse of a minor,' which are subject only to the 'categorical approach.'” Id. Notably, the Board addressed aggravated felony “murder” in section 101(a)(43)(A) in Matter of M-W-, 25 I&N Dec. 748 (BIA 2012) [PDF version], finding, after discussing Nijhawan, that the categorical approach controls.

  • Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016)
    Statute: INA 212(a)(2)(A)(i)(I) — Inadmissibility for crimes involving moral turpitude.
    See decision [PDF version] and [see article]

The Board explicitly declined to apply the categorical approach to determining whether a crime involving sexual abuse of a minor is a crime involving moral turpitude, finding “no basis in the [INA] or precedent to parse the categorical approach” in this manner. 26 I&N Dec. at 838 n.8.

  • Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), abrogated on other grounds by Descamps v. United States, 133 S.Ct. 2276 (2013)
    Statute: INA 237(a)(2)(C) — This renders deportable an alien who “at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18).”
    See decision [PDF version].

First, see our discussion of the history of Matter of Lanferman and its abrogation in our first section discussion ofthe decision [see section].

The Board “assume[d] arguendo that the issue of whether a firearm for purposes of section 237(a)(2)(C) of the [INA] is not subject to the circumstance-specific approach set forth in Nijhawan…” 25 I&N Dec. at 731 n.10. The Board would again address section 237(a)(2)(C) in Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017) [PDF version] [see article], where it applied the categorical approach to the statute with no reference to Nijhawan or the circumstance-specific approach.

  • Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010)
    Statute: INA 101(a)(43)(R) — Defines as an immigration aggravated felony “an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is one year.”
    See decision [PDF version]

After citing to Nijhawan, the Board stated that “[s]ection 101(a)(43)(R) of the [INA] is a generic provision to which the categorical approach applies because it lacks specific circumstances regarding the way the offender committed the crime on a specific occasion.” 25 I&N Dec. at 358.

Decisions Overruled by the Supreme Court on the Question at Hand

In the article, we noted several BIA decisions that were abrogated or vacated on grounds not having to do with their circumstance-specific approach analysis. There was, post-Nijhawan, one decision BIA decision that crafted a test based on the circumstance-specific approach that was rejected by the Supreme Court.

In Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) [PDF version], the Board dealt with section 101(a)(43)(B) of the INA, which defines as an immigration aggravated felony “illicit trafficking in a controlled substance (as defined in [18 U.S.C. 21]), including a drug trafficking crime (as defined in [18 U.S.C. 924(c)]).” There is a limited exception in the Federal criminal statutes relied upon by the INA in 21 U.S.C. 841(b)(4) for an individual who violates a trafficking statute “by distributing a small amount of [marijuana] for no remuneration.” In Matter of Castro-Rodriguez, the Board applied the circumstance-specific test in Nijhawan and held that “an alien in Immigration Court may offer the 'affirmative defense' of 'a small amount of [marijuana] for no remuneration' when the law of the convicting jurisdiction does not have a 'mitigating exception' comparable to that in 21 U.S.C. 841(b)(4).” 25 I&N Dec. at 702. However, this portion of Matter of Castro-Rodriguez was overruled by the Supreme Court in Moncrieffe v. Holder, 133 S.Ct. 1678, 1690 (2013) [PDF version], wherein the Court held that “the relevant INA provisions ask what the noncitizen was 'convicted of' not what he did, and the inquiry in immigration proceedings is limited accordingly.” Without citing to Nijhawan specifically, the Supreme Court made clear in Moncrieffe that the categorical approach controls when considering whether a conviction falls under section 101(a)(43)(B).

Conclusion

Nijhawan v. Holder remains one of the most significant recent immigration decisions from the Supreme Court . This is evinced by the number of times the Board has discussed it in published decisions. The cases discussed in this article address how the Board today interprets a variety of common aggravated felony and deportability provisions. Regardless of the specific charges, an alien facing immigration charges should always consult with an experienced immigration attorney immediately for case-specific guidance.

We would again like to remind to see our articles on the Nijhawan decision [see article] and on a selection of important Federal circuit court decisions that applied Nijhawan in the immigration context [see article].