BIA Expands Use of Divisbility

Written by Wendy Barlow on

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Criminal convictions can have serious consequences for aliens. When a non-citizen is arrested for any criminal violation, it is important to consult with an experienced immigration attorney especially before accepting a plea bargain. The goal in criminal proceedings is often to minimize the punishment. However, in the immigration context, the initial focus is typically on the language of the criminal statute the alien has been convicted of violating. The immigration courts have adopted two approaches for determining whether an offense prohibited by the criminal statute the alien is convicted of violating comes within a specific ground of removability.

The first approach is referred to as the categorical approach, which limits the analysis of the alien's removability to the language of the underlying criminal statute of conviction. The adjudicator cannot consider the alien's underlying conduct on which may have formed the basis of the conviction. The second approach is referred to the modified categorical approach, which is used where the statute of conviction is divisible. The modified categorical approach allows the record of the conviction to be used to determine whether the alien was convicted of an offense that makes him or her removable. The record of conviction includes the charging document, jury instructions, plea transcript, etc. The use of the modified categorical approach is problematic as it may lead to “ad hoc mini-trials on whether an offender's conduct was more or less culpable than what his actual conviction required.” Matter of Lanferman, 25 I&N Dec. 721, 723 (BIA 2012).

When an alien is convicted of a criminal offense, which necessarily or potentially renders an alien removable, the first step is to determine whether the categorical or modified categorical approach is applicable. This requires the immigration judge to determine whether the statute of conviction is divisible. In the Matter of Lanferman, the Board of Immigration Appeals (BIA) considered three different formulations to apply to potentially divisible statutes. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012). According to the first formulation, the modified categorical approach “may only applied if certain structural or grammatical statutory characteristics are present on the face of the statute of conviction, such as the enumeration of a list of qualifying alternative elements in discrete subsections or the separation of various means of committing the offense within disjunctively divided words or phrases.” Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84, 90 (2d Cir. 2009). The BIA rejected this formulation concluding “the structural design of a criminal statute is frequently of limited relevance to how the statute is interpreted by the courts charged with its application and thus is, at best, just a starting point from a full explication of the statute may be developed.” Id. at 725.

The second formulation considered by the BIA allowed the modified categorical approach to be applied “when either (1) the statute of conviction is phrased in the disjunctive or divided into subsections such that some variations of the crime of conviction meet the requisites for removability under the immigration laws and others do not, or (2) the relevant removability provision 'invite[s] inquiry into the facts underlying the conviction.'” Id. at 726 cting Singh v. Ashcroft, 383 F.3d 144, 161-162 (3d Cir. 4004). The BIA found the first prong was similar to the first formulation while the second prong “supplement[ed] the divisibility definition by looking, not to the statute of conviction, but whether the ground of removability 'invites inquiry' into the underlying facts.” Id. The BIA concluded the “'invites inquiry' standard [was not] a useful one, since whether or not a statute contains an 'invitation' appears to be an inexact concept that manifests itself primarily in the eye of the beholder.” Id. at 727.

The BIA adopted the third formulation where “divisibility would be permitted in 'all statutes of conviction [ ] regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct.'” Id. The BIA felt that adopting the broadest of the three approaches was appropriate as “the categorical approach itself need not be applied with the same rigor in the immigration context as in the criminal arena, where it was developed.” Id. at 728. The adoption of this third formulation is concerning as it allows broad latitude to review the record of conviction in determining whether a particular conviction makes an alien removable. The record of conviction can often contain information that can lead to a finding that an alien is removable. At the very least, the information in the record conviction can be highly prejudicial when seeking relief from removal. As such, when an alien is arrested, it is imperative he or she consult an experienced immigration attorney before entering a guilty plea regardless of the potential sentence.