Judge Malphrus of the BIA issued an interesting concurring opinion in Matter of Chairez IV addressing the strict approach to divisibility in immigration proceedings.
The BIA issued a decision in the Matter of Chairez discussing Voisine and when it could “peek” at the record to determine if a conviction was an aggravated felony.
In the Matter of Chairez, the BIA held that the categorical approach must be used when a criminal statute presents different means for satisfying a single element.
With the SCOTUS decision in Mathis, the AG lifted her stay on two BIA decisions regarding the categorical approach and modified categorical approach
In Mathis v. United States, the Supreme Court held that courts must apply the categorical approach to a statute that defines only one crime but alternative means of committing it
It remains unclear for immigration after the Matter of Voisine whether a crime with a minimum mens rea of recklessness can be a crime of violence.
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