Attorney General Lifts Stay in Chairez & Sama Regarding Use of Categorical/Modified Categorical Approach

Matter of Chairez & Sama

 

(Update: June 1, 2017): There has been extensive subsequent litigation on this case. To see an up-to-date overview of the litigation and all of our articles on the issue, please see our full blog [see blog].**

Introduction: Attorney General Lifts Stay in Matter of Chairez & Sama

On October 30, 2015, the Attorney General referred stayed two Board of Immigration Appeals decisions and referred them to herself for review in the Matter of Chairez & Sama, 26 I&N Dec. 686 (AG 2015) [PDF version] (“Chairez & Sama 2015”). The referral concerned the proper approach for determining “divisibility” of criminal statutes that allow for alternative means of commission in light of the Supreme Court decision in Descamps v. United States, 133 S.Ct. 2276 (2013) [PDF version]. In short, the issue in Chairez & Sama 2015 was, with regard to triggering adverse immigration impacts based upon a conviction under a multi-part state criminal statute, under what circumstances must the conviction be categorically for an offense described in the Immigration and Nationality Act (INA) (meaning that any conviction under a multi-part criminal statute would have to be for an offense included in the relevant INA provision) or, alternatively, under what circumstances may administrators or courts apply the “modified categorical approach” (meaning that whether the conviction falls under the relevant INA provision depends on which part of the multi-part criminal statute is the actual basis of the conviction).

On September 7, 2016, the Attorney General lifted her stay in the Matter of Chairez & Sama, 26 I&N Dec. 796 (AG 2016) [PDF version] (“Chairez & Sama 2016”). This decision was prompted by the Supreme Court's recent decision on June 23, 2016, in Mathis v. United States, 579 U.S. __ (2016) [PDF version], which addressed the issues that prompted the Attorney General's initial stay in October of 2015.

In this article, we will review the history of the proceedings that led to the Attorney General lifting the stay in the Matter of Chairez & Sama, 26 I&N Dec. 796 (AG 2016). As you read, please refer to the previous articles we have written on the procedural history of the case and on the subject in general:

Descamps v. United States and its Effects on Immigration Law [see article];
Attorney General Refers Two BIA Decisions to Herself for Review [see article]; and
Mathis v. United States: SCOTUS Clarifies When the Categorical Approach Must be Used [see article].

1. Initial Stay of Chairez and Sama

The Attorney General's decision in the Chairez & Sama 2015 stayed the following BIA decisions:

Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [PDF version]; and
Matter of Sama, 2015 WL 4761234 (BIA Jul. 17, 2015) [PDF version].

The Matter of Chairez is a published decision for precedent whereas the Matter of Sama was unpublished and not for precedent.

The Attorney General's referral concerned how to determine whether a statute is “divisible” under the Supreme Court decision in Descamps. In the immigration context, this is pertinent in determining whether a state or federal conviction is for an aggravated felony or a deportable offense under the INA. Because the INA describes general offenses, it is not always clear whether a federal or state conviction is for that offense. Often, the difference will come down to whether the statute is “divisible” or not.

A divisible statute sets out alternative disjunctive elements. In effect, this means that it is possible to obtain a conviction under a divisible statute by proving one element or set of elements of the statute but not other elements. In Descamps, the Supreme Court offered the example of a statute that criminalizes “burglary involving entry into a building or an automobile.” This is a divisible statute because a conviction can be obtained by proving that a person committed burglary involving entry into a building or burglary involving entry into an automobile. If a statute is found to be divisible, adjudicators or courts may analyze it under what is called the “modified categorical approach.” For immigration purposes, this would mean that an administrative body or a court may examine the factual elements of the conviction to determine whether an alien was convicted under a part of the statute that matches to a provision in the INA. In general, the modified categorical approach is less favorable to an alien with a criminal conviction because it makes it more likely that a conviction may be found to fall under an INA provision.

However, many statutes are not divisible. If a statute is not divisible, an administrative body or a court must apply the “categorical approach.” This means that the adjudicator must compare the statutory definition of the crime with the elements of the generic crime. In Descamps, the statute in question provided that “a person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary. For purpose of determining whether a non-divisible statute is covered by a provision relating to criminal aliens in the INA, adjudicators are restricted to determining whether the criminal statute is a “categorical match” with the INA provision. In short, this means that any conviction under the criminal statute must be covered by the INA provision, or the administrative body or court to consider the actual facts in the record of conviction in making a determination if the conviction is for an INA offense.

The BIA actually considered the Matter of Chairez twice. The case considered whether a conviction in Utah for “felony discharge of a firearm” was a crime of violence under the INA. The statute contains the terms “intentional,” “knowing,” and “reckless” discharge of a firearm. “Intentional” and “knowing” discharge of a firearm would be crimes of violence under the INA. However, “reckless” discharge of a firearm would not be a crime of violence. Therefore, the issue of whether the statute was divisible would be decisive in determining whether a conviction under the statute was a crime of violence. If the statute was divisible, the Board could assess the elements of the conviction to determine whether the alien was convicted of “intentional” or “knowing” discharge of a firearm (aggravated felonies) or “reckless” discharge of a firearm (not an aggravated felony). If the statute was not divisible, than the Board would have to find that the conviction was not for an aggravate felony because nothing about the conviction would show that it was not for “reckless” discharge of a firearm.

In the first Chairez decision, the Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) [PDF version] (“Chairez 1”), the Board found that the statute was not divisible and that the alien had not been convicted of an aggravated felony. However, in a different case, the Tenth Circuit held in U.S. v. Trent, 767 F.3d 1046 (10th Cir. 2014) [PDF version] that the Supreme Court did not understand the term “element” as requiring jury unanimity in order to sustain a conviction. Under this precedent, the statute's presentation of alternative mental states rendered the statute divisible, even though a jury was not required to agree on one of the mental states at the exclusion of the others to sustain a conviction. Because Utah is under the jurisdiction of the Tenth Circuit, the Board was bound by its precedent, and it reversed Chairez 1 in Chairez 2, finding that under Tenth Circuit precedent, the statute was divisible. However, the Board only overruled Chairez 1 in areas under the jurisdiction of the Tenth Circuit, and it continued applying Chairez 1 outside of the Tenth Circuit. The Board thus relied upon Chairez 1 in the Matter of Sama instead of Chairez 2.

Because of this unclear situation, the Attorney General decided to stay both Chairez 2 and Sama and referred the issue to herself for review. In short, the question was whether, under Descamps, the correct approach was that of the Tenth Circuit in Trent where jury unanimity on an element of the conviction is require for a statute to be divisible, or whether the Board's approach in Charez 1 and Sama was correct.

2. The Supreme Court Addresses the Issue in Mathis

On June 23, 2016, the Supreme Court addressed the issue in question in Chairez & Sama 2015 in Mathis v. United States, 579 U.S. __ (2016). Like the statute at question in Chairez, Mathis concerned a “categorically overbroad” statute. This means that the state statute in question, in this case an Iowa statute criminalizing burglary, referenced conduct that would fall under the definition of generic burglary (which was covered by a federal enhanced sentencing statute) and conduct that would not.

In Mathis, a five-Justice majority led by Justice Elena Kagan, held that in order for a categorically overbroad statute to be divisible, each element would require jury unanimity for a conviction. For example, the issue in Mathis was that the Iowa statute addressed burglary of a “building” or “structure” (would qualify for federal enhanced sentencing purposes) or of a “water, land, or air vehicle” (would not qualify). The decision in Mathis held that the statute at issue would, by its terms, have to require the jury in reaching a verdict to agree beyond a reasonable doubt on what was burglarized in order for the statute to be considered divisible. In fact, however, there was no such statutory requirement and a jury could reach a conviction while not agreeing on whether a “building or structure” was burglarized or a “water, land, or air vehicle.”

In an interesting side-note that we discussed in detail on our full article in Mathis, there is reason to believe that the Mathis precedent may be susceptible to reversal based on the reservations of Justice Anthony Kennedy in his concurring opinion. Although Mathis is binding precedent for now, it will be worth watching if another case regarding the same issue comes before the Supreme Court.

3. The Attorney General Lifts Her Stay

In footnote 2 of our article on Mathis, we stated that:

It is quite possible that the Attorney General will find that Mathis settles the issue [in Chairez & Sama 2015]. This is because Mathis holds that an “element” must be “proved beyond a reasonable doubt to sustain a conviction” (see syllabus for Mathis).

When the Attorney General referred issued Chairez & Sama 2015, the decisions in both Chairez 2 and Sama were automatically stayed. Indeed, as we suggested may be the case, the Attorney General lifted her stay from Chairez & Sama 2015 and remanded both Chairez 2 and Sama to the Board for “appropriate action.” Because Mathis clearly abrogated the Tenth Circuit in Trent with regard to the definition of an “element,” the Board will now be required to finally resolve the case in accordance with the new Supreme Court precedent.

Conclusion

The question of when a statute can be considered “divisible” is a very important one in the criminal alien context. If Chairez 1 or the dissenters in Mathis prevailed, many convictions that are not for aggravated felonies under the INA under the categorical approach would be subject to higher scrutiny. However, the Mathis precedent, which severely limits when a statute can be considered “divisible,” means that many State convictions that include language pointing to immigration aggravated felonies will not be considered as such for being categorically overbroad.

We look forward to continuing to update our site with the most recent information about this important issue. Most importantly, we will be waiting for the next decision from the BIA addressing the issues discussed in this article. In the long term, it will be interesting to see whether the Supreme Court stands by Mathis, or whether a majority either weakens the Mathis decision or steps away from it entirely the next time the question comes before the Court.

As always, an alien with criminal issues should consult with an experienced immigration attorney immediately for guidance on how a criminal conviction may affect his or her immigration status based upon the statutes and current administrative and judicial precedent.