Persad v. Barr

Petition for Review Granted

We would like to share a bit of good news from The Law Offices of Grinberg & Segal.

On March 24, 2020, the United States Court of Appeals for the Second Circuit certified its decision in Persad v. Barr, 17-661 [PDF version]. Our office represented the petitioner, Mr. Dasrath D. Persad, in his appeal of a decision of the Board of Immigration Appeals (BIA) finding that his unitary sentence based on convictions for four separate offenses by a military court-martial in 1992 was categorically an aggravated felony theft offense under INA 101(a)(43)(G). I (Alexander J. Segal) presented oral arguments on behalf of Mr. Persad before a three-judge panel of the Second Circuit on October 16, 2018.

The Second Circuit ruled in favor of Mr. Persad in a very important decision. I will explain the legal issue briefly. Mr. Persad was sentenced to 30 months' confinement for his conviction by military court-martial on four separate counts. In order for him to have been found to have committed an aggravated felony under INA 101(a)(43)(G), the Government was required to prove that he had been convicted of a theft offense for which a sentence of one year or more was imposed. Military court-martial issue what are called “unitary sentences,” that is, a single sentence for all the counts a defendant is convicted without imposing an individual sentence for each count. The question here was whether the Government could sustain its burden of establishing by clear and convincing evidence that the single theft offense count of four counts that Mr. Persad was convicted of accounted for at least 12 months of his 30-month unitary sentence.

The Second Circuit agreed with us, finding that the Government could not sustain its burden of showing that Mr. Persad was sentenced to one year or more of imprisonment for his conviction of the theft offense. Therefore, the Court concluded that Mr. Persad had not been convicted of an aggravated felony under INA 101(a)(43)(G).

This decision is not only an incredible result for Mr. Persad and our firm, but also a significant decision in the area of evaluating unitary sentences from military courts-martial and immigration consequences, in general The Second Circuit, in a matter of first impression, broadly agreed with the decision of the United States Court of Appeals for the Third Circuit in Chavez-Alvarez v. Attorney General, 783 F.3d 478 (3d Cir. 2015) — which was not binding precedent on the Second Circuit — that the Government cannot merely assume that a unitary sentence from a military court-martial applies in full to each count. We discuss Chavez-Alvarez in a comprehensive article on site [see article]. The Second Circuit's decision here, along with Chavez-Alvarez, promises to be very important to many non-citizens who were given unitary sentences in military court-martial proceedings encompassing multiple convictions.

The Second Circuit remanded Mr. Persad's case for further proceedings consistent with its opinion. We will continue to represent Mr. Persad and hope to prevail on remand.

We will eventually write a more comprehensive article about this important decision in Persad v. Barr. In the meantime, we will continue to update our site with important immigration-related information about the ongoing coronavirus outbreak as it becomes available.

Stay safe.