AG to Review Whether Certain Theft or Fraud Convictions Trigger Removal for Aggravated Felony

Introduction: Matter of Reyes, 27 I&N Dec. 708 (A.G. 2019)

On November 21, 2019, Attorney General William P. Barr published a decision in Matter of Reyes, 27 I&N Dec. 708 (A.G. 2019) [PDF version]. The Attorney General directed the Board to refer Matter of Reyes and a specific issue therein to him for review. In this article, we will examine the Attorney General's referral.

Referral

The Attorney General directed the Board to refer Matter of Reyes to him for review under 8 CFR 1003.1(h)(1)(i). The Board's decision in Matter of Reyes is automatically stayed pending the Attorney General's review. Matter of Reyes is a non-precedent decision.

Issues Presented

The Attorney General invited the parties and interested amici to submit briefs that address the following question:

[W]hether an alien who has been convicted of a criminal offense necessarily has been convicted of an aggravated felony for purposes of [INA 237(a)(2)(A)(iii)], where all of the elements of the underlying statute of conviction, and thus all the means of committing the offense, correspond either to an aggravated felony theft offense, as defined in [INA 101(a)(43)(G)], or to an aggravated felony fraud offense, as defined in [INA 101(a)(43)(M)(i)].

Section 237(a)(2)(A)(iii) provides that any alien who has been convicted of an aggravated felony after admission is deportable. The Attorney General is considering whether an alien who is convicted of violating a statute where all the elements of the statute correspond either to an aggravated felony theft offense (INA 101(a)(43)(G)) or an aggravated felony fraud offense (INA 101(a)(43)(M)(i)) is necessarily deportable under INA 237(a)(2)(A)(iii).

INA 101(a)(43)(G) defines an aggravated felony (in the pertinent part) as “a theft offense (including receipt of stolen property) … for which the term of imprisonment [is] at least one year…”

INA 101(a)(43)(M)(i) defines an aggravated felony as “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000…”

Briefing Schedule

The parties in Matter of Reyes will be required to submit briefs not exceeding 15,000 words on or before December 20, 2019. Interested amici may submit briefs not exceeding 9,000 words on or before January 17, 2020. The parties may also submit reply briefs not exceeding 6,000 words on or before January 17, 2020.

Conclusion

The Attorney General's ultimate decision in Matter of Reyes could implicate many removal cases — especially any involving convictions for offenses that are generally described by both INA 101(a)(43)(G) and INA 101(a)(43)(M)(i). Although it is uncertain when the Attorney General will publish a decision, recent Attorney General decisions suggest that a decision could be expected in mid- to late-2020.