BIA Amicus Invitation No. 18-02-14: “Removability & Aggravated Felony Definitions”

On February 14, 2018, the Board of Immigration Appeals (BIA) issued Amicus Invitation No. 18-02-14, titled “Removability & Aggravated Felony Definitions” [PDF version]. The purpose of the BIA Amicus Invitation is to invite interested members of the public to file amicus briefs with the BIA on the issues presented in the invitation. Responses to the BIA Amicus Invitation are due by March 16, 2018. We will review the issues presented in this post.

BIA Amicus Invitation No. 18-02-14 presents two issues. We will address each issue in turn.

The first issue reads as follows:

Whether DHS can establish removability by charging an alien as an aggravated felon under two separate aggravated felony definitions, neither of which would independently be a categorical match to the statute of conviction, if all means of violating the statute fall within at least one of the charged aggravated felony definitions.

The first issue presents an interesting, albeit highly technical, question. The Immigration and Nationality Act (INA) contains several aggravated felony provisions in section 101(a)(43)(A)-(U) [see article]. If an alien is found to have been convicted of an aggravated felony, he or she faces removal from the United States. Aggravated felonies are based on criminal convictions.

The question supposes that an alien is convicted of a criminal violation, but that the language of his or her statute of conviction is not a “categorical match” with the language of any individual aggravated felony provision. In order for a criminal statute to categorically define an aggravated felony, any possible conviction under the statute must fall under the umbrella of an aggravated felony provision. The elements of the statute of conviction — i.e., the things that must be proven in order to secure a conviction — must categorically match the elements of the specific aggravated felony. If it is possible to be convicted in violation of the statute of conviction for conduct that is outside the scope of the aggravated felony provision in question, then the statute of conviction is “categorically overbroad,” and the conviction is not for an aggravated felony.

The issue supposes that an alien is convicted in violation of a criminal statute that is not a categorical match with respect to any individual aggravated felony provision. In this instance, it suggests that the statute of conviction falls partially within the scope of two separate aggravated felony provisions, but is categorically overbroad with respect to both.

The BIA is soliciting briefing on whether an individual in the above scenario may be charged as an aggravated felon under two separate aggravated felony provisions where neither provision is a categorical match with the statute of conviction, “if all means of violating the statute fall within at least one of the charged aggravated felony definitions.” (Emphasis added.)

Here, it is important to discuss the distinction between “elements” and “means.” An element, as we discussed, is something that must be proven in order to sustain a conviction. “Means” represent how a defendant satisfied an element, or more simply put, how he or she actually committed an offense. The Supreme Court has held in multiple cases that under the categorical approach, courts may only inquire into the elements, not the means.

With this in mind, let us examine the scenario suggested by the issue and the questions it presents in a clear, step-by-step format:

An alien is convicted of violating a criminal statute.
The criminal statute is not a categorical match with any individual aggravated felony provision, or in other words, the elements of the statute of conviction do not fall entirely within the elements of any single aggravated felony provision under the categorical approach.
Can the Department of Homeland Security (DHS) charge the individual under two separate and distinct aggravated felony provisions — neither of which is a categorical match with the statute of conviction individually — if all of the means (ways of committing the criminal violation) fall within the scope of at least one of the charged aggravated felony provisions.

Given the technical nature of this question, it is little surprise that the Board opted to seek amicus briefs on the matter. Please see our index article on cases discussing the categorical approach to learn more about some of the issues we have discussed [see article]. Please also see our article on the 2016 Supreme Court of the United States decision in Mathis v. United States, which delved into the distinction between “elements” and “means” with specific examples [see article].

The second issue reads as follows:

Whether all means of violating New York Penal Law [section] 155.05 would meet the definition of an aggravated felony defined in either section 101(a)(43)(G) OR section 101(a)(43)(M) of the Immigration and Nationality Act [], and if so, under which definition of aggravated felony would each subsection of NYPL [section] 155.05(02) fall.

The second question is more straightforward. NYPL 155.05 defines the crime of “larceny” under New York law. The Board is requesting briefs on whether all of the means of violating NYPL 155.05 fall under the aggravated felony provision in either section 101(a)(43)(G) or section 101(a)(43)(M) of the INA. Furthermore, the Board asked in the event that one answers in the affirmative, would the means of violating NYPL 155.05(02) fall under section 101(a)(43)(G) or (M).

We discuss several BIA decisions on the subject of section 101(a)(43)(G) in our BIA Index [see section]. To learn about section 101(a)(43)(M) in detail, please see our full article on the Supreme Court decision in Nijhawan v. Holder. [see article].

Conclusion

The issues presented will be worth following as we go forward. The Board answering the question presented in issue one in the affirmative would potentially expand the scope of the INA's aggravated felony provisions and invite further adjudication in Federal appellate courts. We will update the site if and when the Board issues a published decision addressing the issues presented in this Amicus Invitation.