aggravated felony

On September 15, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Ibarra, 26 I&N Dec. 809 (BIA 2016). Ibarra addressed the scope of the immigration aggravated felony for a “theft offense” found in section 101(a)(43)(G) of the Immigration and Nationality Act (INA). The Board found that section 101(a)(43)(G) includes within its scope extortionate takings where “consent” is obtained through the through the wrongful use of force, fear, or threats. In this article, we will examine the facts of the case, the Board’s analysis and decision, and what the new precedent decision means for similar situations going forward.

On May 5, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Garza-Oliveras, 26 I&N Dec. 736 (BIA 2016). The case dealt with the immigration aggravated felony found in section 101(a)(43)(T) of the Immigration and Nationality Act (INA) consisting “an 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 a sentence of 2 years’ imprisonment or more may be imposed.” The Board held that the categorical approach must be used to decide if an alien’s offense “relates to [his or her] failure to appear,” but the circumstance-specific approach applies to determine if the failure to appear was under a court order, to answer to or dispose of a charge of a felony, or for which a sentence of 2 years’ of imprisonment or more may be imposed. In this article, we will examine the facts and the procedural history of the case, the Board’s analysis and decision, and the effects of the new BIA precedent going forward.

In the Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016), the Board of Immigration Appeals (BIA) found that when a sentencing order is ambiguous as to whether an alien was sentenced to a term of imprisonment of at least one year, the sentencing judge’s clarifying order may be considered as evidence. In the Matter of H. Estrada, the clarifying order was used to determine that the respondent had not been sentenced to a term of imprisonment of at least one year for purpose of his conviction being an aggravated felony for a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act (INA).

On May 2, 2016, the Board of Immigration Appeals (BIA) rendered a precedent decision in the Matter of Adeniye, 26 I&N Dec. 726 (BIA 2016) regarding the meaning of the term “punishable by” in the statute for the immigration aggravated felony found in section 101(a)(43)(Q) of the Immigration and Nationality Act (INA) (failure to appear for sentencing where the underlying sentence is punishable by at least 5 years’ imprisonment). The Board held that “punishable by” refers to the maximum sentence that may be imposed under a statute rather than the actual sentence imposed. In this article, we will review the facts of the case, the reasoning behind the Board’s decision, and the effects of the Board’s decision going forward.

If an alien is subject to a “permanent bar” to good moral character, he or she will be permanently precluded from establishing good moral character, regardless of whether the action that the alien committed to cause the permanent bar to attach occurred in the relevant statutory period. In this article, we will study statutes, regulations, and administrative guidance to examine the permanent bars to good moral character.

In the Matter of Esquivel-Quintana, the BIA held that a California statute for “unlawful intercourse with a minor” was categorically an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act (INA) (for “sexual abuse of a minor”). In this article, we will discuss the BIA’s holding in the Matter of Esquivel-Quintana, the reasoning behind the decision, and its broader effect on immigration law regarding criminal aliens.

On October 19, 2015, a two-judge majority of a three-judge panel of the Ninth Circuit held in Dimaya v. Lynch, 803 F.3d 1110 (Oct 19, 2015) held that 101(a)(43)(F) of the Immigration and Nationality Act (INA), which defines aggravated felonies for a “crime of violence,” is unconstitutionally vague under the Due Process Clause of the Fifth Amendment in its incorporation of 18 U.S.C. 16(b). In rendering its decision, the Ninth Circuit relied upon the recent Supreme Court decision in Johnson v. United States, – U.S. –, 135 S.Ct. 2551 (2015). This article will discuss the case background, the reasoning behind the decision, and the potential future litigation over Johnson’s application to 18 U.S.C. 16(b) as it is incorporated into the INA.

Immigration law classifies numerous serious crimes as “aggravated felonies” in section 101(a)(43) of the Immigration and Nationality Act (INA). A conviction for a crime that is defined as an “aggravated felony” in immigration law will have serious adverse immigration consequences for an alien.

Section 238(b) of the Immigration and Nationality Act (INA) contains an administrative removal procedure for non-lawful permanent resident aliens (LPRs) who are deportable due to a conviction for an aggravated felony. The removal procedure in 238(b) is a form of summary removal and as such, unless the alien either rebuts the charges or establishes eligibility for withholding of removal, will not be entitled to a hearing before a judge. This article will explain the administrative removal process in section 238(b) and describe the ways in which an alien who is charged under 238(b) may seek to avoid administrative removal.