Immigration and Criminal Law

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.

The Immigration and Nationality Act contains several inadmissibility grounds for noncitizens who commit certain criminal and related offenses. In this article, I will list the criminal and related inadmissibility grounds found in section 212(a)(2) of the Immigration and Nationality Act (INA) [codified in 8 U.S.C. 1182(a)(2)] and explain the rules, exceptions, and waivers for each category of inadmissibility.

On June 20, 2013, the United States Supreme Court rendered an important decision in Descamps v. United States. The Descamps decision addressed the analysis of state criminal statutes for purpose of determining when a prior state conviction triggers the imposition of a harsher sentence under the federal Armed Career Criminals Act. The Supreme Court held Descamps that where a statute consists of “a single, indivisible set of elements,” the appellate court may only consider whether the most minor conduct proscribed by the statute would constitute the crime in question (in the case of Descamps, the crime of burglary as specified in ACCA). However, if the statute is “divisible,” the appellate court may rely upon limited evidence from the record of facts to determine which element or set of elements of the statute yielded the conviction.

On December 9, 2015, the Board of Immigration Appeals (BIA) issued an important precedent decision in Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015). The BIA held that a term of confinement issued as a condition of a probation sentence qualifies as a “term of confinement” under section 101(a)(48)(B). This article will explain the background of the case, the reasoning behind the decision, and what the precedent means for criminal aliens.

In 2004, the Supreme Court held unanimously in Leocal v. Ashcroft, 543 U.S. 1 (2004), that a state DUI offense which (1) does not have a means rea (state of mind) component; or (2) requires only a showing of negligence in the operation of a vehicle is not a “crime of violence” under 18 U.S.C. 16. his holding was made in the context of an appeal by a lawful permanent resident who had been ordered deported based upon his DUI conviction being considered an immigration aggravated felony under section 101(a)(43)(F) of the INA. In this article, we will look at the facts of Leocal v. Ashcroft, the Supreme Court’s decision, and its broader implication for aliens with certain criminal convictions.

On December 22, 2015, the Tenth Circuit Court of Appeals issued a decision in De Leon v. Lynch No. 13-9601 (10th Cir. Dec. 22, 2015) [PDF] that ruled on two important immigration issues. First, the Tenth Circuit held that an Oklahoma statute for possession stolen vehicles is categorically a crime of moral turpitude (CIMT), thus triggering inadmissibility. On a separate point, the Tenth Circuit held that an alien who adjusted to lawful permanent resident (LPR) status after entering the United States is eligible for a section 212(h) waiver of inadmissibility. In this article, I will discuss the facts of De Leon v. Lynch, the reasoning behind the Tenth Circuit’s decision, and the significance of the decision.

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.

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 January 15, 2016, issued its decision in Esquivel-Quintana v. Lynch, No. 15-3101, (6th Cir. 2015), which followed the Board of Immigration Appeals’ (BIA’s) precedent decision in the Matter of Esquivel-Quintana, 26 I&N Dec. 469, 477 (BIA 2015). The Sixth Circuit upheld the Matter of Esquivel-Quintana in accordance on the Chevron test. This requires courts to defer to an administrative agency’s interpretation of an ambiguous statute that it is charged with administering so long as that interpretation is reasonable. However, a third judge on the three-judge panel dissented in part with regard to the majority’s decision to apply Chevron to the statute because it has both criminal and civil applications. In this article, we will explore the two opinions from Esquivel-Quintana v. Lynch.

On February 9, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016). In the Matter of Mendoza Osorio, the BIA held that a New York child endangerment categorically constituted a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). In this article, we will look at the issues presented, the BIA’s reasoning, and the potential effects of this new BIA precedent going forward.

The Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) on February 24, 2016. The Board held that in order for a state offense to qualify as a “crime of violence” under 18 U.S.C. 16(a), the state statute in question must require as an element “the use , attempted use, or threatened use of violent physical force.” In the decision, the Board also withdrew parts of its precedent decision in the Matter of Martin, 23 I&N Dec. 491 (BIA 2002) that were overruled by the First Circuit in Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015 as being inconsistent with Supreme Court precedent in Leocal v. United States, 543 U.S. 1 (2004) and Johnson v. United Sates, 559 U.S. 133, 137 (2010).

On February 24, 2016, the Board of Immigration Appeals issued a precedent decision in the Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) (“Guzman-Polanco I”). In the Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016) (“Guzman-Polanco II”), the Board issued a second opinion clarifying its decision in Guzman-Polanco I. It emphasized that Guzman-Polanco I did not establish nationwide Board precedent with regard to the question of whether a statute that criminalizes the use or threatened use of force by indirect means (i.e., poison) would fall under the scope of 18 U.S.C. 16(a).

In a decision dated to June 1, 2015, the Supreme Court held by a margin of 7-2 in Mellouli v. Lynch that a state drug conviction for concealing unnamed pills cannot trigger removal under section 237(a)(2)(B)(i) of the Immigration and Nationality Act if the statute in question does not categorically implicate a federally controlled substance. In this article, we will provide a brief overview of the statutes in question, the reasoning behind the decision, and what the decision means in the context of removal and deportation law.

The Immigration and Nationality Act (INA) proscribes harsh immigration penalties for controlled substance violations and trafficking in controlled substances. Provisions for inadmissibility for controlled substance violations and trafficking in controlled substances are found in section 212 of the INA, whereas deportability grounds for those violations are found in section 237. In this article, we will explore various issues relating to inadmissibility and deportability for controlled substance violations.

In this article, we will review various precedential and unpublished decisions from the Second, Third, Fifth, and Ninth Circuits relating to controlled substance inadmissibility and deportability. The cases involve state statutes from New York, New Jersey, Pennsylvania, Texas, and California. The sampling of cases will both show how courts analyze state-level controlled substance statutes and some of the differences in precedents between the circuits.

The Immigration and Nationality Act (INA) has harsh immigration penalties for controlled substance violations and trafficking in controlled substances. Provisions for drug trafficking-related inadmissibility and deportability are found in sections 212 and 237 (via section 101) of the INA. In this article, we will examine various issues relating to inadmissibility and deportability on drug trafficking grounds.

In this article, we will review multiple precedential and unpublished decisions relating to drug trafficking inadmissibility and deportability from the Second, Third, Fifth, and Ninth Circuits. The cases we will look at arise from state convictions in New York, Connecticut, New Jersey, Pennsylvania, California, and Arizona. The selection of cases will shed light on various issues relating to the inadmissibility and deportability grounds for trafficking in controlled substances and will furthermore show how circuits have interpreted various state-level controlled substance statutes in the immigration context. This article is intended to be a companion piece to our main article on inadmissibility and deportability for trafficking in controlled substances.

Under section 237(a)(2)(A)(v) of the Immigration and Nationality Act (INA), an alien who is convicted of failure to register as a sex offender, under the federal criminal statute 18 U.S.C. 2250, is deportable. In this article, we will examine the INA’s deportability provision and the federal criminal statute found in 18 U.S.C. 2250.

Section 237(a)(2)(D) lists several deportability provisions for “miscellaneous crimes.” Among these provisions is that found in section 237(a)(2)(D)(ii) of the Immigration and Nationality Act (INA), which renders deportable an alien who has been convicted of violating or of a conspiracy or attempt to violate 18 U.S.C. 871. 18 U.S.C. 871, a federal criminal provision, proscribes the making of certain threats against the President, President-Elect, Vice President, Vice President-Elect, or other person next-in-line to the Presidency. In this article, we will discuss the deportability ground found in section 237(a)(2)(D)(ii) of the INA through an examination of 18 U.S.C. 871.

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.

On May 19, 2016, the Board of Immigration Appeals (BIA) rendered a precedent decision in the Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016) addressing whether a conviction for solicitation to possess marijuana for sale is a crime involving moral turpitude (CIMT) as defined in section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA). In the instant case, the alien had been a lawful permanent resident (LPR) and the question of whether the offense was a CIMT determined whether she would be treated as an “arriving alien” rather than an LPR. Ultimately, the Board held that within the Ninth Circuit (from under the jurisdiction of which this case arose), a felony conviction for solicitation to possess marijuana for sale is a CIMT. In so doing, the Board modified its precedent decision in the Matter of Vo, 25 I&N Dec. 426 (BIA 2011). In this article, we will examine the facts and procedural history of the case, the Board’s reasoning in reaching its decision, and the effect of its decision going forward.

On May 27, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016). The decision dealt with two issues regarding criminal aliens. Firstly, the Board found that the “circumstance-specific approach” may be used to determine whether a conviction is for a crime of domestic violence under the deportability provision in section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). Secondly, the Board determined that when a sentence is ambiguous as to whether an alien was sentenced to probation or a probated term of imprisonment—with respect to determining whether the alien was sentenced to a term of imprisonment of at least 1 year for purpose of his conviction qualifying as an aggravated felony for a crime of violence under section 101(a)(43)(F)—“a clarification order issued by the sentencing judge to correct an obvious discrepancy in [the] original order will be given effect” in determining whether the alien was sentenced to a term of imprisonment of 1 year.

In the Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016), the Board of Immigration Appeals (BIA) found that in order for a conviction to be for a crime of domestic violence under the deportability provision in section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA), the statute itself need not be categorically for a crime of domestic violence. Rather, a “circumstance-specific” approach may be utilized to determine whether a domestic relationship existed between the offender and the victim.

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 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.

On June 27, 2016, the Supreme Court issued a decision titled Voisine v. United States, 579 U.S. __ (2016). In Voisine, the Court held, by a 6-2 margin, that 18 U.S.C. 922(g)(9), a statute which prohibits firearms possession for a person who has been convicted of a “misdemeanor crime of domestic violence” encompasses a state conviction that could be for a “reckless” assault rather than for a “knowing or intentional” assault. Although Voisine is not an immigration case and does not directly implicate any immigration statutes, the reasoning of the Court may be applicable to the definition for a “crime of violence,” which is relevant in the immigration context. In this article, we will discuss the Court's reasoning in Voisine and its potential effects on immigration law.

In the Matter of Chairez, 26 I&N Dec. 819 (BIA 2016), the Board of Immigration Appeals (BIA) clarified the rules for determining when a criminal statute is “divisible” consistent with the Supreme Court decisions in Mathis v. United States, 136 S.Ct. 2243 (2016) and Descamps v. United States, 133 S.Ct. 2276 (2013). To learn more about the new Matter of Chairez decision, please see our comprehensive article. In this article, we will examine a footnote from the new Matter of Chairez decision regarding the question of whether, in light of the Supreme Court decision in Voisine v. United States, 136 S.Ct. 2272 (2016), reckless conduct may be included within the scope of the immigration aggravated felony provision for a crime of violence.

On June 23, 2016, the Supreme Court issued an important decision titled Mathis v. United States, 579 U.S. ___ (2016). Although Mathis is not an immigration case, its precedent will have effects on immigration law. For example, immigration adjudicators and federal courts are often tasked with determining whether an alien who is convicted of an offense was convicted of committing an immigration aggravated felony. Often, the question of whether the categorical approach or the modified categorical approach must be employed in determining whether the alien’s conviction was for an aggravated felony. In this article, we will examine the decision in Mathis and discuss its possible effects on immigration law in the criminal aliens context.

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) (“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). On September 7, 2016, the Attorney General lifted her stay in the Matter of Chairez & Sama, 26 I&N Dec. 796 (AG 2016) (“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), 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).

On September 28, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Chairez, 26 I&N 819 (BIA 2016) (“Chairez III”). The case concerned when a statute defining a crime may be treated as “divisible.” In the instant case, an alien was convicted in violation of a Utah state law for felony discharge of a firearm. In accordance with the Supreme Court’s decisions in Mathis v. United States, 136 S.Ct. 2243 (2016) and Descamps v. United States, 133 S.Ct 2276 (2013), the Board held that the statute was not divisible and that the alien was not inadmissible for having been convicted of an immigration aggravated felony. A key point in the decision was that the statute did not require the mens rea (state of mind) of the defendant to be determined by the jury in order for the defendant to be convicted under the statute.

On April 24, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) (“Chairez IV”). In the its decision, the Board held that when determining whether a statute is “divisible” under the Supreme Court of the United States decision in Mathis v. United States, 136 S.Ct. 2243 (2016), Immigration Judges are permitted to “peek” at an alien’s record of conviction only in order to discern whether alternatives in the statute of conviction define “elements” or “means.” Additionally, the Board also addressed the applicability of the Supreme Court’s holding in Voisine v. United States, 136 S.Ct. 2272 (2016) to the 18 U.S.C. 16 crime of violence context in immigration proceedings. Specifically, the question was whether Voisine means that a crime with a minimum mens rea of “recklessness” is a crime of violence. In this article, we will examine the Chairez IV decision.

On April 24, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) (“Chairez IV”). In this decision, the fourth precedent decision issued by the Board on the Chairez case, the Board held that Immigration Judges may “peek” at an alien’s conviction record “only to discern whether statutory alternatives define ‘elements’ or ‘means’ provided State law does not otherwise resolve the question.” In Chairez IV, Judge Garry D. Malphrus of the BIA issued an interesting concurring opinion. First, he agreed with the result reached by the Board in the case. However, Judge Malphrus raised interesting questions regarding the application of the Supreme Court decisions – that regard with the use of the categorical and modified categorical inquiries in criminal proceedings – to immigration proceedings. In this post, I will discuss Judge Malphrus’s opinion.

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 September 23, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Zaragoza-Vaquero, 26 I&N Dec. 814 (BIA 2016). In the decision, the Board held that a federal conviction for copyright infringement under 17 U.S.C. 506(a)(1)(A) (2012) and 18 U.S.C. 2319(b)(1) (2012) is a crime of moral turpitude (CIMT). In this article, we will examine the facts and procedural history of the case, the Board’s analysis and decision, and what the new Board precedent may mean going forward for similar cases.

On September 29, 2016, the Supreme Court agreed to hear Lynch v. Dimaya, 15-1498, on appeal from the United States Court of Appeals for the Ninth Circuit. The case concerns whether part of the Immigration and Nationality Act’s (INA’s) definition of an aggravated felony crime of violence in section 101(a)(43)(F) is unconstitutionally vague. Specifically, the question regards the INA’s incorporation of 18 U.S.C. 16(b), a non-immigration federal criminal statute. It is important to note that the issues presented do not call into question the INA’s incorporation of 18 U.S.C. 16(a) in the same provision.

In Silva-Trevino III, the Board held that the categorical and modified categorical approaches provide the proper framework for assessing whether a criminal conviction is a CIMT. With regard to the categorical approach, the Board held that adjudicators must use the “realistic probability test,” which focuses on the minimum conduct under the statute in question that has “a realistic probability of being prospected” in determining whether the statute is a categorical crime involving moral turpitude (CIMT). In this article, we will examine the Matter of Silva-Trevino with respect to its discussion of how to determine whether a conviction is a CIMT.

On October 12, 2016, the Board of Immigration Appeals (BIA) issued an important decision titled the Matter of Silva-Trevino (“Silva-Trevino III”), 26 I&N Dec. 826 (BIA 2016)]. In Silva-Trevino III, the Board articulated a uniform standard for determining whether a particular criminal offense is a crime involving moral turpitude (CIMT). In this article, we will examine the case history of Silva-Trevino III to explain the series of decisions that led to the Board’s most recent resolution of the issue.

On October 12, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Silva-Trevino (“Silva-Trevino III”), 26 I&N Dec. 826 (BIA 2016). This decision was the third in line on the same issue after the Matter of Silva-Trevino (“Silva-Trevino I”), 24 I&N Dec. 687 (AG 2008) and the Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (AG 2015).

On November 20, 2014, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, released a Memorandum detailing new immigration enforcement priorities tiled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.” Within the first priority level, the Memorandum includes aliens who were convicted of an offense for which an element was active participation in a criminal street gang. For the definition of a “criminal street gang,” the Memorandum relies in part upon a federal criminal statute found in 18 U.S.C. 521(a). In this article, we will examine the language of the relevant statute to understand cases in which active participation in a criminal street gang may render one a top immigration enforcement priority.

In the Matter of Diaz-Lizarraga, 26 I&N Dec. 856 (BIA 2016), the Board held that a theft offense is a CIMT if “it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.” In accordance with its holding, the Board held that a conviction for shoplifting in violation of section 13-1805(A) of the Arizona Revised Statutes is categorically a CIMT. The decision has the effect of overruling any past precedent decisions that suggested that a “literal intent to permanently deprive” an owner of his or her property is required for a theft offense to be a CIMT. In this article, we will examine the facts of the case, the Board’s analysis, and the broader effect of this new precedent.

On November 16, 2016, the Board of Immigration Appeals (BIA) issued a decision titled the Matter of Obeya, 26 I&N Dec. 856 (BIA 2016). In this decision, the Board held that petit larceny in violation of section 155.25 of the New York Penal Law is a categorical crime involving moral turpitude (CIMT). In reaching its decision, the Board followed a separate precedent decision issued on the same day in the Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016). Diaz-Lizarraga established the rule that a theft offense is categorically a CIMT if it involves “an intent to deprive the owner of his [or her] property either permanently or under circumstances where the owner’s property rights are substantially eroded.”

In this article, we will review the USCIS Policy Manual's (PM's) introduction to the false claim to U.S. citizenship inadmissibility ground, the background of the provision, and how it is distinct from the inadmissibility provision for fraud or misrepresentation of a material fact to procure immigration benefits. This article is the first part of four articles covering the PM’s guidance on the false claim to U.S. citizenship immigration ground.

In this article, we will discuss the USCIS Policy Manual's (PM's) guidance on determining whether a false claim to U.S. citizenship as defined in section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA) was made. This is the second article in a four-part series on the USCIS-PM’s guidance on the false claim to U.S. citizenship inadmissibility ground.

In this article, we will examine the USCIS Policy Manual's (PM's) guidance on the adjudication of false claims to U.S. citizenship as defined in section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA), and the USCIS-PM’s guidance regarding limited statutory exceptions within the provision.

On December 29, 2016, the Board of Immigration Appeals (BIA) a precedent decision in the Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016). The decision concerned the immigration aggravated felony provision for perjury found in section 101(a)(43)(S) of the Immigration and Nationality Act (INA). The Board held that “perjury,” as that term is employed in section 101(a)(43)(S), references a generic offense of perjury, which the Board found “requires that an offender make a material false statement knowingly or willfully while under oath or affirmation where an oath is authorized or required by law.”

On March 3, 2017, the Board of Immigration Appeals (BIA) issued a precedential decision in the Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017). In this decision, the Board held that an offense for transporting a firearm under Oklahoma State law is categorically a firearms offense under section 237(a)(2)(C) of the INA, notwithstanding that section 237(a)(2)(C) does not specifically include the term “transporting.” In this article, we will examine the facts and procedural history of the Matter of Flores-Abarca, the Board’s reasoning and decision, and what this decision will mean going forward.

On January 31, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Kim, 26 I&N Dec. 912 (BIA 2017). In the Board was tasked with determining whether a conviction under section 203 of the California Penal Code for the crime of mayhem is a categorical crime of violence under 18 U.S.C. 16(a) (2012). The Board found that a conviction under section 203 of the California Penal Code is categorically a crime of violence under 18 U.S.C. 16(b) because section 203 “requires a malicious act that results in great bodily injury to another person,” therefore “necessarily involv[ing] the use of violent force.” In this article, we will examine the facts and procedural history of the Matter of Kim, the Board’s reasoning and decision, and what the precedent will mean going forward.

On April 6, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017). In its decision, the Board held that a sexual offense in violation of a statute intended to protect children but that does not require a culpable mental state as to the age of the child is nevertheless a crime involving moral turpitude (CIMT) under either of two circumstances. The first is if the victim is particularly young, that is, under the age of 14. The second circumstance is if the victim is under the age of 16 and the age differential between the perpetrator and the victim is significant. Alternatively, both of these circumstances may apply and render the conviction a CIMT.

On April 13, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Wu, 27 I&N Dec. 8 (BIA 2017). In the Matter of Wu, the Board held that “[a]ssault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude.” In rendering its decision, the Board distinguished the instant case from the published opinion of the United States Court of Appeals for the Ninth Circuit in Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc). In this article, we will examine the facts of the Matter of Wu, the Board’s reasoning and decision, and what the decision likely means going forward as precedent.

The former section 212(c) of the Immigration and Nationality Act (INA) provided a waiver for certain lawful permanent residents (LPRs) who were rendered deportable by a criminal conviction. The former section 212(c) was repealed by Congress, effective April 1, 1997, and was replaced generally by the narrower cancellation of removal for LPRs. However, the Supreme Court of the United States held in 2001 that the repeal of former section 212(c) does not apply retroactively. In this article, we will examine the text and history of the former section 212(c). We will explain who may still benefit from section 212(c) today, the rules for seeking section 212(c) relief, and relevant administrative precedent and caselaw concerning the scope of former section 212(c).

On May 30, 2017, the Supreme Court of the United States decided Esquivel-Quintana v. Sessions, 581 U.S. ___ (2017). The case concerned a lawful permanent resident (LPR) who had been found removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) for having been convicted of an aggravated felony under section 101(a)(43)(A) of the INA (sexual abuse of a minor). In a unanimous 8-0[1] decision authored by Justice Clarence Thomas, the Supreme Court held that when considering a statutory rape offense that criminalizes sexual intercourse based solely on the age of the participants, the generic federal definition of “sexual abuse of a minor” requires that the victim of the offense have been under the age of 16. This means that any statutory rape statute that criminalizes sexual intercourse with an individual between the ages of 16 or 18 – including the statute of conviction in Esquivel-Quintana – is not a categorical aggravated felony under section 101(a)(43)(A) of the INA. The Supreme Court thereby reversed the United States Court of Appeals for the Fourth Circuit, which had issued a published decision on the case in Esquivel-Quintana v. Lynch. By extension, the Supreme Court’s decision also has the effect of reversing a precedent BIA decision issued in this same case in the Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015).

On June 1, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Alday-Dominguez, 27 I&N Dec. 48 (BIA 2017). The Board held that the aggravated felony receipt of stolen property codified in section 101(a)(43)(G) of the Immigration and Nationality Act (INA) does not require that the unlawfully received property have been obtained by means of common law theft or larceny. In this article, we will examine the facts and procedural history of the Matter of Alday-Dominguez, the Board’s reasoning and conclusion, and what the new precedent will mean going forward.

On June 16, 2017, a split Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Deang, 27 I&N Dec. 57 (BIA 2017). In Matter of Deang, the Board held that an essential element of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Immigration and Nationality Act (INA) is that the offender must have received the stolen property with the “knowledge or belief” that it was stolen. In short, the Board determined the minimum mens rea (state of mind) required for a receipt of stolen property offense to qualify as aggravated felony receipt of stolen property offense under section 101(a)(43)(G).

On June 23, 2017, the Supreme Court of the United States issued its decision in Lee v. United States, 582 U.S. ___ (2017). The case concerned Jae Lee, an alien who had been a defendant in criminal proceedings. Lee’s counsel incorrectly advised him that pleading guilty to certain criminal charges would not have adverse immigration consequences. Lee pled guilty, but he was then charged as deportable on the basis of the offense to which he had pled guilty. In moving to vacate his conviction Lee claimed that his counsel had been ineffective and asserted that, had he given legally accurate advice, Lee would have opted to go to trial in lieu of pleading guilty. A six-justice majority led by Chief Justice John Roberts held that a defendant can show prejudice from his counsel’s deficient performance in plea proceedings by establishing that there is a reasonable probability that but for counsel’s errors, he or she would not have pled guilty. Pertinently, this standard thus applies regardless of the presumptive strength of the evidence against the defendant and the likely outcome if a trial were to have taken place.

On June 26, 2017, the Supreme Court ordered re-argument in Sessions v. Dimaya, No 15-14498, for next term. The issue in Dimaya concerns section 101(a)(43)(F) of the Immigration and Nationality Act (INA). Section 101(a)(43)(F) contains the provision for the immigration aggravated felony of “crime of violence.” It incorporates the Federal criminal definition of “crime of violence” found in 18 U.S.C. 16. 18 U.S.C. 16 contains two sections, (a) and (b). The question before the Court in Dimaya is whether 18 U.S.C. 16(b) is “unconstitutionally vague” as incorporated into the INA.

Section 287(g) of the Immigration and Nationality Act (INA) allows for the Secretary of Homeland Security to enter into agreements with State authorities and authorities from subdivisions of States on immigration enforcement. The 287(g) program has been expanded by the Trump Administration. In this post, we include a list of current section 287(g) agreements.

On September 7, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Delgado, 27 I&N Dec. 100 (BIA 2017). In Matter of Delgado, the Board held that the crime of robbery as codified under section 211 of the California Penal Code, which includes the element of asportation of property, is a categorical aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act (INA). Significantly, the Board made this finding regardless of whether the violator of the statute merely aided or abetted in the asportation of property stolen by a principal. In this article, we will examine the Board’s reasoning and decision in Matter of Delgado.

On September 5, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017). In Matter of Mohamed, the Board held that entry into a pretrial intervention agreement under Texas law qualifies as a “conviction” under section 101(a)(48)(A) because it met the following two conditions. First, the respondent must have admitted to sufficient facts to warrant a finding of guilt at the time of his or her entry into the pretrial intervention agreement. Second, the judge must have authorized an agreement under which the respondent is ordered to participate in a pretrial intervention program that requires the respondent to complete community supervision and community service, pay fines and restitution, and comply with a no-contact order. In this article, we will examine the facts and procedural history of Matter of Mohamed, the Board’s reasoning and conclusion, and what the decision will mean as precedent law going forward.

On January 26, 2009, Judge Raymond A. Jackson of the United States District Court for the Eastern District of Virginia issued a published decision in Iqbal v. Bryson, 604 F.Supp.2d 822 (E.D. Va. 2009). In the decision, Judge Jackson held that deferred adjudication under New York law was not a “conviction” for immigration purposes as defined in section 101(a)(48)(A) of the Immigration and Nationality Act (INA). The decision took on added significance after the Board of Immigration Appeals (BIA) addressed it in a footnote to its decision in Matter of Mohamed, 27 I&N Dec. 92, 97 & n.6 (BIA 2017). In Matter of Mohamed, the Board determined that a pretrial intervention agreement under Texas law did constitute a “conviction” for immigration purposes, but the Board carefully distinguished the Texas provision at issue in that case from the New York provision addressed in Iqbal.

On September 11, 1964, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Gaglioti, 10 I&N Dec. 719 (BIA 1964). In Matter of Gaglioti, the Board held that a conviction for conspiracy to commit an unlawful act (establish gambling games) in violation of Pennsylvania law (at the time) not a crime involving moral turpitude. More broadly, the Board held that “[v]iolations of gaming laws do not ordinarily involve moral turpitude.” Although Matter of Gaglioti has not been often cited since its issuance, the Board noted the precedent in a footnote to is recent decision in Matter of Vella, 27 I&N Dec. 138, 139 & n.2 (BIA 2017), making it a good time to revisit the decision. We will also discuss the related Board decision in Matter of G-, 1 I&N Dec. 59 (BIA 1941), upon which the Board relied in Matter of Gaglioti. In this article, we will provide an overview of Matter of Gaglioti and what longstanding Board precedent still means today.

On October 16, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017). In the decision, the Board concluded that criminally negligent homicide in violation of section 125.10 of the New York Penal Law is not categorically a crime involving moral turpitude. The Board reasoned that the statute does not require as an element a sufficiently culpable mental state for it to categorically define a crime involving moral turpitude. In this article, we will examine the facts and procedural history of Matter of Tavdidishvili, the Board’s analysis and conclusions, and what the decision will mean going forward.

On October 20, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Keeley, 27 I&N Dec. 146 (BIA 2017). Matter of Keeley concerned the scope of the term “rape” in the aggravated felony provision found in section 101(a)(43)(A) of the Immigration and Nationality Act (INA). The Board held that the term “rape” in section 101(a)(43)(A) “encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight.” In reaching this conclusion, the Board declined to follow the United States Court of Appeals for the Fifth Circuit decision in Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012). The Board also held that “rape” in section 101(a)(43)(A) “requires that the underlying sexual act be committed without consent…” The Board held that the “without consent” requirement may be shown by evidence that “the victim’s ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.” In this article, we will examine the facts and procedural history of the case, the Board’s analysis and conclusions, how the decision differs from existing Fifth Circuit precedent, and what the decision will mean going forward.

On November 9, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it had assisted in the investigation of a large scale marriage fraud ring that resulted in the conviction of three individuals for violating federal law. The statement detailed that a federal jury found three individuals – Letrishia Andrews, Justice Daniel, and Florian H. Alabi – “guilty on multiple counts of conspiracy to commit marriage fraud, aiding/abetting marriage fraud, marriage fraud, theft of government funds[,] and false statements.”

On November 17, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017). In the decision, the Board held that, when determining if a violation of an order of protection renders an alien removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (INA), adjudicators are not governed by the “categorical approach.” Instead, Immigration Judges “should consider the probative and reliable evidence regarding what a State court has determined about the alien’s violation.” Based on its conclusion, the Board clarified its previous published decision in Matter of Strydom, 25 I&N Dec. 507 (BIA 2011) where it had applied the categorical approach section 237(a)(2)(E)(ii). In this article, we will examine the factual and procedural history of Matter of Obshatko, the Board’s analysis and conclusion, and how the decision will affect similar cases going forward.

On February 7, 2017, a three-judge panel of the United States Court of Appeals for the Seventh Circuit issued a published for-precedent decision in Garcia-Hernandez v. Boente, 847 F.3d 869 (7th Cir. 2017). In the decision, authored by Judge David Hamilton, the Seventh Circuit held that an alien’s violation of a “stay away” portion of an order of protection rendered him deportable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (INA). Significantly, the Seventh Circuit held that the categorical and modified categorical approaches are inapplicable to determining whether a conviction for violating an order of protection renders an alien deportable under section 237(a)(2)(E)(ii). Subsequent to the Seventh Circuit decision in Garcia-Hernandez, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), wherein it followed the Seventh Circuit’s conclusion that the categorical and modified categorical approaches do not govern determinations of deportability under section 237(a)(2)(E)(ii). In this article, we will examine the Garcia-Hernandez decision and the Seventh Circuit’s reasoning and conclusions. Please make sure to see our related article on the BIA decision in Matter of Obshatko to learn more about the current state of law surrounding section 237(a)(2)(E)(ii) of the INA.

On December 29, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Jasso Arangure, 27 I&N Dec. 178 (BIA 2017). In the most far-reaching aspect of Matter of Jasso Arangure, the Board held that the Department of Homeland Security (DHS) is not precluded from initiating a removal proceeding against an alien for aggravated felony burglary (section 101(a)(43)(G) of the Immigration and Nationality Act (INA)) against whom it had previously initiated a separate removal proceeding for aggravated felony crime of violence (section 101(a)(43)(F)) based on the same criminal conviction. Notably, the Board declined to follow a decision of the United States Court of Appeals for the Ninth Circuit in Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007). Additionally, the Board held that a conviction for home invasion in the first degree in violation of section 750.110a(2) of the Michigan Compiled Laws is a categorical burglary offense under section 101(a)(43)(G) of the INA. In this article, we will examine the facts and procedural history of Matter of Jasso Arangure and the Board’s analysis and conclusion pertaining to its holding that the DHS is not precluded from initiating removal proceedings based on the same conviction upon which it had previously initiated removal proceedings against the same alien. We will examine the Board’s analysis and conclusions on the categorization of the respondent’s home invasion/burglary conviction in a separate companion article.

On December 29, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in Matter of Jasso Arangure, 27 I&N Dec. 178 (BIA 2017). We have broken our discussion of Matter of Jasso Arangure into two articles in order to cover its two divergent points. The most significant holding – that the Department of Homeland Security (DHS) is not precluded by res judicata from initiating a separate proceeding to remove an alien as an alien convicted of an aggravated felony after having initiated an original proceeding to remove an alien based on the same charge and conviction but a different aggravated felony – is covered in our main article on Matter of Jasso Arangure. In this article, we will examine the Board’s analysis of whether the respondent’s conviction of home invasion in the first degree in violation of Michigan Compiled Laws section 750.110a(2) was a categorical aggravated felony burglary offense under section 101(a)(43)(G). As we will find, the Board held that the respondent’s conviction was a categorical aggravated felony burglary offense.

On June 15, 2009, the Supreme Court of the United States issued a decision titled Nijhawan v. Holder, 129 S.Ct. 2294 (2009). In Nijhawan, the Supreme Court considered the proper approach for determining whether a conviction was an aggravated felony fraud or deceit offense in which the loss to the victim or victims exceeds $10,000 under section 101(a)(43)(M)(i) of the Immigration and Nationality Act (INA). The decision, written by Justice Stephen Breyer for a unanimous Court, held that the proper approach for determining whether a fraud or deceit crime resulted a loss to the victim or victims in excess of $10,000 is the “circumstance-specific approach.” Not only is the Nijhawan decision relevant in the section 101(a)(43)(M)(i) context, it is also relevant to the determination of whether other immigration statutes that are similarly structured call for the circumstance-specific approach as well. In this article, we will examine the facts and procedural history of Nijhawan v. Holder, the Supreme Court’s analysis and conclusions, and what the decision means generally.

On February 23, 2018, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Mendez, 27 I&N Dec. 219 (BIA 2018). In Matter of Mendez, The Board held that misprision of a felony in violation of the Federal criminal statute 18 U.S.C. 4 is categorically a crime involving moral turpitude. In so doing, the Board reaffirmed its 2006 published decision in Matter of Robles, 24 I&N Dec. 22 (BIA 2006), but only outside of the jurisdiction of the United States Court of Appeals for the Ninth Circuit. After the Matter of Robles, decision, the respondent in that case had filed a petition for review with the Ninth Circuit. In Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), the Ninth Circuit granted the petition, ruling that the Board erred in interpreting the Immigration and Nationality Act (INA) in holding that misprision of a felony under 18 U.S.C. 4 is categorically a crime involving moral turpitude. Thus, Matter of Mendez does not apply within the jurisdiction of the Ninth Circuit due to contrary Ninth Circuit precedent on the issue.

On March 14, 2018, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Rosa, 27 I&N Dec. 228 (BIA 2018). Under section 101(a)(43)(B) of the INA, an alien who engages in illicit trafficking of controlled substances as defined in Federal criminal law (including a drug trafficking crime) is considered to have committed an immigration aggravated felony. In Matter of Rosa, the Board held that when an adjudicator is deciding whether a State offense is punishable under the Federal Controlled Substances Act, which is determinative as to whether it is an immigration aggravated felony, the adjudicator “need not look solely to the provision of the Controlled Substances Act that is most similar to the State statute of conviction.”

On March 15, 2018, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018). The question before the Board was whether the crime of attempted voluntary manslaughter in violation of sections 192(a) and 664 of the California Penal Code was an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act (INA). The Board concluded that the California statute, which required that a defendant act with specific intent to cause the death of another person, defines an aggravated felony crime of violence “notwithstanding that the completed offense of voluntary manslaughter itself is not such an aggravated felony.” In this article, we will examine the facts and procedural history of Matter of Cervantes Nunez, the Board’s reasoning and conclusions, and what the new precedent means going forward.

On April 6, 2018, Attorney General Jeff Sessions issued a memorandum for federal prosecutors on the Southwest Border titled “Zero-Tolerance for Offenses Under 8 U.S.C. 1325(a).” In the memorandum, Attorney General Sessions directs Federal prosecutors on the Southwest Border to prosecute every case referred by the Department of Homeland Security (DHS) under 8 U.S.C. 1325(a) (same as section 275(a) of the Immigration and Nationality Act (INA)) to the extent practicable. Here, it is important to note that section 275(a) of the INA is a criminal law instead of a civil immigration law. This means that charges under section 275(a) are prosecuted in criminal court instead of civil immigration court.

On April 6, 2018, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Marquez Conde, 27 I&N Dec. 251 (BIA 2018). In Matter of Marquez Conde, the Board reaffirmed its decision in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) regarding the validity of vacated convictions for immigration purposes under section 101(a)(48)(A) of the INA, and modified its decision in order to apply it to cases arising in the jurisdiction of the United States Court of Appeals for the Fifth Circuit. The other Federal circuit courts had already adopted Matter of Pickering. Regarding vacated convictions, the Board held that a conviction that is vacated based on a procedural or substantive defect in the underlying criminal proceedings does not remain valid for immigration purposes. However, a conviction that is vacated for reasons other than a substantive defect in the underlying criminal proceedings, it remains in place for immigration purposes.

On April 20, 2018, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018). In the decision, the Board concluded that the offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under the deportability provision found in section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). In so doing, the Board overturned its prior precedent decision in the case, Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012). In the 2012 Matter of Sanchez-Lopez decision, the Board had held that the offense of stalking in violation of section 646.9 of the California Penal Code was “a crime of stalking” under section 237(a)(2)(E)(i). However, it is important to note that, while the 2012 Matter of Sanchez-Lopez ruling was then overturned by the board in 2018 decision to the extent that it had held that section 646.9 of the California Penal Code was a “crime of stalking” under the INA, the Board retained its definition of a generic stalking offense from the 2012 Matter of Sanchez-Lopez decision. The Board reached this conclusion in the instant case because it found that the statute allowed for a conviction if the stalking caused the victim to fear nonphysical injury to him or herself or his or her family, whereas the generic Federal offense requires that the victim is caused to fear bodily injury or death him him or herself or his or family.

On May 21, 2018, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Ding, 27 I&N Dec. 295 (BIA 2018). The case dealt with the term “prostitution” as it appears in the aggravated felony provision found in section 101(a)(43)(K)(i) of the Immigration and Nationality Act (INA). Section 101(a)(43)(K)(i) defines as an aggravated felony “an offense that relates to the owning, controlling, managing, or supervising of a prostitution business.” In Matter of Ding, the Board held that 101(a)(43)(K)(i) “is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.” Accordingly, Matter of Ding represents an important precedent going forward on the scope of the aggravated felony provision in section 101(a)(43)(K)(i). In this article, we will examine the factual and procedural history of Matter of Ding and, subsequently, the Board’s analysis and conclusions and what these conclusions mean going forward.

In this article, we will examine the aggravated felony provision, found in section 101(a)(43)(C) of the INA, of illicit trafficking in firearms, destructive devices, or explosive materials. In so doing, we will examine the language of section 101(a)(43)(C) itself, the language of other relevant statutes, and important administrative and judicial precedents on the subject.

On October 4, 2018, the Board of Immigration Appeals (BIA) published an immigration precedent decision in Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA 2018). In the decision, the Board held that the retroactive amendment of a criminal statute reducing the maximum sentence that could be imposed from 365 days (i.e., one year) to 364 days does not affect the determination that the an alien’s past conviction, prior to the amendment, was for a crime involving moral turpitude for which a sentence of one year or more could be imposed (covered by section 237(a)(2)(A)(i)(II) of the Immigration and Nationality Act (INA)). In this article, we will examine the factual and procedural history of Matter of Velasquez-Rios, the Board’s analysis and conclusions, and what the decision means going forward.

On October 17, 2018, the United States Court of Appeals for the Third Circuit filed an interesting unpublished decision in Morillo v. Attorney General of the United States, No. 18-1839 (3d Cir. 2018). The case dealt with how to consider whether an alien was convicted of an aggravated felony under section 101(a)(43)(M)(i), which covers an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000…” (Emphasis added.) In this article, we will briefly examine the Third Circuit’s unpublished decision.

On September 11, 2018, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018) . The Board considered the definition of an aggravated felony “offense relating to obstruction of justice” under section 101(a)(43)(S) of the Immigration and Nationality Act (INA). The Board held that section 101(a)(43)(S) “encompasses offenses covered by chapter 73 of the Federal criminal code, [18 U.S.C. 1501-1521] (2012), or any other Federal or State offense that involves (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant, or in another’s punishment resulting from a completed proceeding.” In this article, we will review the factual and procedural history of the new Matter of Valenzuela Gallardo decision, the Board’s analysis and conclusions, and what the decision will mean in section 101(a)(43)(S) cases going forward.

On June 21, 2017, the United States Court of Appeals for the Second Circuit published a precedential decision in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017). The Second Circuit held that a conviction for criminal sale of a controlled substance in the fifth degree under New York Penal Law (NYPL) section 220.31 is not an aggravated felony trafficking in controlled substances offense under section 101(a)(43)(B) of the Immigration and Nationality Act (INA). The Second Circuit reached this conclusion after determining that NYPL 220.31 is not divisible with respect to the controlled substance being trafficked and that the New York statutes contain at least one controlled substance that is not in the Federal schedules, thus making NYPL 220.31 categorically overbroad. In this article, we will examine the factual and procedural history of Harbin v. Sessions, the Second Circuit’s analysis and conclusions, and what the decision means going forward.

On May 8, 2018, the United States Court of Appeals for the Second Circuit published an interesting precedent decision in Henriquez v. Sessions, 890 F.3d 70 (2d Cir. 2018). Judge José A. Cabranes, writing for a three-judge panel, held that a conviction for fifth degree possession of a controlled substance in violation of New York Penal Law (NYPL) 220.06 for possession of cocaine rendered him removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA). In so doing, the Second Circuit concluded that NYPL 220.06 was a divisible statute with respect to the substance possessed, which distinguished the matter from the Second Circuit’s prior decision in NYPL 220.31 in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017). Finally, the panel held that the petitioner’s conviction for bail jumping under NYPL 215.57 was an aggravated felony under section 101(a)(43)(T) of the INA. In this article, we will discuss the factual and procedural history of Henriquez, the Second Circuit’s reasoning and decision, and what the precedent will mean going forward.

On January 15, 2019, a divided Supreme Court published an important decision in Stokeling v. United States, 139 S.Ct. 544 (2019). The question before the Court was whether a conviction in Florida for robbery in violation of Fla. Stat. 812.13(1) (1995) was a “violent felony” as defined in the Armed Career Criminals Act (ACCA), which is a Federal sentence enhancement statute found at 18 U.S.C. 924(e)(2)(B)(i). The majority held that the Florida conviction was a qualifying predicate offense because it included as an element that the perpetrator must use force sufficient to overcome a victim’s resistance. In so doing, the Court affirmed the decision of the United States Court of Appeals for the Eleventh Circuit in United States v. Stokeling, 684 Fed.Appx. 870 (Mem) (11th Cir. 2017). Although the case itself was not an immigration matter, the decision will likely affect how courts adjudicate cases where an alien is charged with having been convicted of a crime of violence. In this article, we will examine the opinion of the Court, the dissenting opinion, and what the new precedent may mean for immigration law going forward.

On April 12, 2019, the Board of Immigration Appeals (BIA) published a new precedent decision in the Matter of A. Vasquez, 27 I&N Dec. 503 (BIA 2019). The Board held that kidnapping in violation of 18 U.S.C. 1201 is not an aggravated felony offense relating to the demand for or receipt of ransom under section 101(a)(43)(H). In so doing, the Board relied on principles of statutory interpretation to conclude that where an alien is convicted of a Federal offense, it is only an aggravated felony under section 101(a)(43)(H) if it is under one of the four criminal statutes specifically enumerated in section 101(a)(43)(H). In this article, we will examine the factual and procedural history of Matter of A. Vasquez and the Board’s analysis and conclusions.

On May 28, 2019, Attorney General William Barr directed the Board of Immigration Appeals (BIA) to refer two of its unpublished decisions to him for review. His decision is published as Matter of Thomas and Thompson, 27 I&N Dec. 556 (A.G. 2019). He will review the following: “[W]hether, and under what circumstances, judicial alteration of a criminal conviction or sentence—whether labeled ‘vacatur,’ ‘modification,’ ‘clarification,’ or some other term—should be taken into consideration in determining the immigration consequences of the conviction.”

On June 11, 2019, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019). The Board considered a case where an alien was convicted of violating a State drug statute that included at least one controlled substance that was not on the Federal controlled substances schedules. The Board concluded that in order for an alien to establish that the conviction was not for a drug offense as defined by the Immigration and Nationality Act (INA), the alien must establish a “realistic probability” that the State would actually apply the statute to prosecute conduct involving the substance not included in the Federal schedules.

On August 6, 2018, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018). In this article, we will focus on the Board’s conclusion that the offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7 USC 2156(a)(1) (2006) is categorically a crime involving moral turpitude.

On June 1, 1951, the former Immigration and Naturalization Service (INS) Central Office (C.O.) published a precedent decision in the Matter of W-, 4 I&N Dec. 401 (C.O. 1951). The Board held that violation of a city ordinance relating to prostitution was a crime involving moral turpitude. The decision was the first to recognize that engaging in prostitution is categorically a crime involving moral turpitude. Despite the age of the decision, it has been recognized by both the Board and several Federal circuit courts as remaining good law in recent decisions.

On September 25, 2019, the Board of Immigration Appeals (BIA) published a precedent decision in the Matter of Gonzales Lemus, 27 I&N Dec. 612 (BIA 2019). The Board concluded that an Iowa statute criminalizing possession of a controlled substance was divisible with respect to the substance being possessed, and the Board thus looked for evidence in the record regarding the alien’s underlying criminal conduct to determine whether he had possessed a federally controlled substance, which would trigger deportability under the Immigration and Nationality Act (INA). Applying this “modified categorical approach,” the Board concluded that the alien had been convicted of possessing methamphetamine and was thus deportable under section 237(a)(2)(B)(i) of the INA.

On October 11, 2019, the Board of Immigration Appeals (BIA) published a precedent decision in the Matter of J-G-P-, 27 I&N Dec. 642 (BIA 2019). The Board held that an Oregon menacing statute which did not include actual inflicted fear as an element categorically defined a crime involving moral turpitude. The Board reasoned that a menacing statute may define a crime involving moral turpitude “where the statute requires evil or malicious intent, and the level of threatened harm, or magnitude of menace implicit in the threat, is serious and immediate” even though the statute does not require proof of the actual infliction of fear in the victim. In so doing, the Board distinguished its precedent in the Matter of Solon, 24 I&N Dec. 239 (BIA 2007).

On November 21, 2019, Attorney General William P. Barr published a decision in Matter of Reyes, 27 I&N Dec. 708 (A.G. 2019). 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.

On January 2, 2020, the Board of Immigration Appeals (BIA) published a precedent decision in the Matter of Salad, 27 I&N Dec. 733 (BIA 2020). The Board held that a conviction for the offense of making terroristic threats in violation of section 609.713, subdivision I, of the Minnesota Statutes is categorically a crime involving moral turpitude. In this article, we will examine what the Board’s analysis and conclusions mean for adjudicating whether similar offenses are crimes involving moral turpitude.

In Matter of JM Acosta, the BIA clarified rules for the finality of criminal convictions for immigration purposes in removal proceedings.

The Board of Immigration Appeals applied its finality of conviction precedents to the issue of late appeals of New York criminal convictions.