Introduction: Matter of Garza-Oliveras

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) [PDF version]. The case dealt with the immigration aggravated felony [see article] found in section 101(a)(43)(T) [see section] 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” [see section]. 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.

Facts of the Case and Procedural History

The respondent in the Matter of Garza-Oliveras had become a lawful permanent resident (LPR) in 1991. In 2014, she was convicted of failing to appear in violation of 18 U.S.C. 3146(a)(1) and (b)(1)(A)(ii) [see statute]. On the basis of those convictions, the Department of Homeland Security (DHS) initiated removal proceedings against the respondent, charging that she was removable under section 237(a)(2)(A)(ii) as an alien convicted of an aggravated felony under section 101(a)(43)(T). The respondent admitted to the allegation that she was convicted of violating 18 U.S.C. 3146(a)(1) and (b)(1)(A)(ii), but she denied that she was removable for having committed an aggravated felony.

The Immigration Judge determined that the respondent’s conviction was not for an aggravated felony and terminated removal proceedings. The DHS appealed the decision to the BIA.

Issue at Hand

The question for the BIA in the Matter of Garza-Oliveras was what approach it should take in analyzing the statutes under which the respondent was convicted with respect to the language of section 101(a)(43)(T) of the INA.

The Immigration Judge applied what is called the “categorical approach” [see article]. Under the categorical approach, the elements of the statute the respondent was convicted of violating must be a categorical match with section 101(a)(43)(T). In effect, this means that any conviction under 18 U.S.C. 3146(a)(1) and (b)(1)(A)(ii) would have to necessarily also be an offense covered under 101(a)(43)(T).

The DHS argued that the Immigration Judge should have applied the “circumstance-specific approach.” Under the circumstance-specific approach, the Immigration Judge would have looked at the circumstances underlying the conviction, such as how the crime was committed, in order to determine whether the specific offense was covered by 101(a)(43)(T). To support this approach, the DHS cited to Nijhawan v. Holder, 557 U.S. 29 (2009) [PDF version], in which the Supreme Court endorsed the circumstance-specific approach for offenses involving fraud or deceit when the loss to the victim exceeds $10,000 under section 101(a)(43)(M).

BIA Analysis

In applying the categorical approach, the Immigration Judge had found that the language of 18 U.S.C. 4146(a)(1), which the respondent was convicted under, was not a categorical match with the aggravated felony provision in section 101(a)(43)(T) of the INA. 18 U.S.C. 3146(a)(1) covers a person who, after having been released, knowingly “fails to appear before a court as required by the conditions of release.” The Immigration Judge found that this was broader than what is covered under 101(a)(43)(T) because it does not specify that the failure to appear must be “pursuant to a court order” issued for the purpose of “[disposing] of a charge.” The Immigration Judge relied upon the Ninth Circuit decision in Renteria-Morales v. Mukasesy, 551 F.3d 1076 (9th Cir. 2008) [PDF version], wherein the Ninth Circuit “applied the categorical approach to all of the components of section 101(a)(43)(T).”

The DHS argued that the Immigration Judge was in error because the limiting language in section 101(a)(43)(T) refers to the circumstances of the offense rather than to the generic elements of the offense (note that the categorical approach is used to compare the generic elements of an offense to the language of the statute). The DHS also noted that only three states have statutes that would be aggravated felonies under 101(a)(43)(T) using the categorical approach. The Supreme Court held in Nijhawan that the limited applicability of section 101(a)(43)(M)(i) under the categorical approach was evidence that “Congress would [not] have intended (M)(i) to apply in so limited and so haphazard a manner.”

The Board concluded that the categorical approach “applies to some aspects of section 101(a)(43)(T).” However, it concurred with the DHS that the circumstance-specific approach applies to other aspects of 101(a)(43)(T).

The Board noted that the categorical approach applies when an individual is convicted of a generic crime (see Moncrieffe v. Holder, 133 S.Ct. 1678, 1684, 1691 (2013) [PDF version]; Taylor v. United States, 495 U.S. 575, 601-602 (1990) [PDF version]). However, the circumstance-specific approach must be used when the language of the immigration provision “calls for the examination of the ‘particular circumstances in which an offender committed the crime on a particular occasion’” (Board quoting from Nijhawan). Following its precedent from the Matter of Dominguez-Rodriguez, 26 I&N Dec. 408, 410-12 (BIA 2014) [PDF version], the Board looked “to the natural meaning of the statutory language.”

The Board stated that an offense must “relate” to a generic “failure to appear” crime in order to be an aggravated felony under section 101(a)(43)(T). The Board cited to Desai v. Mukasey, 520 F.3d 762, 764 (7th Cir. 2008) [PDF version], and to its own precedent from the Matter of Beltran, 20 I&N Dec. 521, 526 (BIA 1992) [PDF version], in noting that the “relating to” language is intended to have broad effect. Citing to Renteria-Morales, the Board listed the five discrete components that an offense must involve in order to qualify as an aggravated felony under 101(a)(43)(T): “(1) a failure to appear (2) before a court, (3) pursuant to a court order, (4) to answer to or dispose of a charge of a felony, (5) where the felony was one for which a sentence of 2 years’ imprisonment or more may be imposed.” Absent any of those five elements, an offense would not qualify as an aggravated felony under 101(a)(43)(T).

The Board held that the first two elements of 101(a)(43)(T) must be analyzed under the categorical approach (a (1) “failure to appear” (2) “before a court”). This is because “they refer to common elements of a generic failure to appear crime.” However, the Board held that the latter three discrete components encompassed by 101(a)(43)(T) are “limiting components” that “do not refer to formal elements of generic failure to appear crimes.” The Board noted that the inclusion of these limiting elements underscores Congress’ intent to limit the scope of 101(a)(43)(T) to certain serious offenses.

The Board concurred with the DHS that applying the categorical approach to the limiting elements encompassed by section 101(a)(43)(T) “would drastically circumscribe [its] reach.” Citing to Nijhawan and United States v. Hayes, 555 U.S. 415, 427 (2009) [PDF version], the Board found it relevant that very few state statutes would categorically match 101(a)(43)(T), and held that it was unlikely Congress “intended [it] to have such a narrow reach.” Accordingly, the Board found that “the circumstance-specific approach is the appropriate inquiry for assessing the limiting components of section 101(a)(43)(T), that is, for determining whether the respondent’s failure to appear before a court was (1) pursuant to a court order (2) to answer to or dispose of a felony charge (3) for which a sentence of 2 years’ imprisonment or more may be imposed.”

The Board rejected the respondent’s reliance on Renteria-Morales. Firstly, the Board noted that the Ninth Circuit decision in Renteria-Morales predated the Supreme Court decisions in Nijhawan and Hayes as well as relevant Board decisions in the Matter of Dominguez-Rodriguez and the Matter of Davey, 26 I&N Dec. 37 (BIA 2012) [PDF version]. Furthermore, Renteria-Morales did not specifically decide the “applicability of the circumstance-specific approach.” Secondly, the Board found that the facts in Renteria-Morales were distinguishable from the facts of the Matter of Garza-Oliveras because, in the former case, the judgment of conviction did not specify which provisions of section 3146 the alien had been convicted of violating.

With regard to the instant case, the Matter of Garza-Oliveras, the Board agreed with the Immigration Judge that the elements of 18 U.S.C. 3146(a)(1) were a categorical match with a generic failure to appear offense. Applying the circumstance-specific approach to the third element of section 101(a)(43)(T), the Board found that the statutory language of 18 U.S.C. 3141 and 3142 meant that the respondent’s conviction necessarily involved failure to appear “pursuant to a court order” (in so doing, the Board agreed with the dissenting opinion in Renteria-Morales).

The Board opted to remand the record to the Immigration Judge for consideration of whether the respondent’s conviction “was to answer or dispose of a felony charge for which a sentence of 2 years’ imprisonment may be imposed” under the circumstance-specific approach.

Decision

The Board sustained the DHS’s appeal and vacated the Immigration Judge’s decision. The Board remanded the record to the Immigration Judge for consideration of whether the respondent’s conviction constituted an aggravated felony (applying the circumstance-specific approach) and for an assessment of whether the respondent is eligible for relief from removal.

Conclusion: Matter of Garza-Oliveras

The Matter of Garza-Oliveras sets up an interesting framework for analyzing whether a conviction for failure to appear is an aggravated felony under section 101(a)(43)(T).

First, an Immigration Judge must determine whether the statute under which an alien is convicted was categorically for a failure to appear before a court. If there is a way under the statute in which a person could be convicted without having failed to appear before a court, the offense in question cannot be an aggravated felony under 101(a)(43)(T).

Secondly, provided that the offense was categorically for failure to appear before a court, the Immigration Judge must determine whether the record shows that the failure to appear was under a court order to answer or dispose of a felony charge for which a sentence of 2 years’ imprisonment or more may be imposed. For the second step, the Immigration Judge must use the circumstance-specific approach and look at the available evidence regarding the conviction.

An alien charged with removability for an offense relating to failure to appear should consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to assess the facts of the case and determine if there are any available effective defenses from removal.

To learn about the circumstance-specific approach with regard to crimes of domestic violence under section 237(a)(2)(E)(i), please see our full article [see article]. To learn about a BIA precedent decision regarding the aggravated felony provision for failure to appear under section 101(a)(43)(Q), please see our article about the Matter of Adeniye [see article].