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BIA on divisibility of statutes

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BIA on divisibility of statutes

  1. 1. BIA on Divisibility of Statutes By Joseph P. Whalen (May 14, 2012)Matter of DIAZ-Garcia, 25 I&N Dec. 794 (BIA 2012) (May 14, 2012) held: (1) The unlawful removal of an alien during the pendency of a direct appeal from a deportation or removal order in violation of 8 C.F.R. § 1003.6(a) (2012) does not deprive the Board of Immigration Appeals of jurisdiction to review the appeal. (2) Where an accomplice is defined as one who aids another in the commission of an offense, a person convicted of being an accomplice to a crime has been convicted of the offense as a second-degree principal.The above is a very fair holding from a very fair decision. I also find it especiallynotable that the BIA showed restraint and concluded thusly: “Based on these facts, we find that the respondent’s conviction for being an accomplice to residential burglary is for a “burglary offense” within the meaning of section 101(a)(43)(G) of the Act. Since his suspended sentence was to a year or more of imprisonment, we conclude that the respondent is removable as an alien convicted of an aggravated felony based on that offense. See section 101(a)(48)(B) of the Act; Matter of S-S, 21 I&N Dec. 900 (BIA 1997). We therefore find it unnecessary to determine whether the respondent was also convicted of a theft offense or a crime of violence. Accordingly, the respondent’s appeal will be dismissed.” At p. 798 [Emphasis added.]The Respondent was found removable for a criminal conviction. DHS charged therespondent as removable for having been convicted of an aggravated felony andcharged that the underlying conviction was an aggravated felony in any or all ofthree ways. They claimed that it could be a “crime of violence”, “theft”, or“burglary” encompassed within two subsections INA § 101(a)(43)(F) and/or (G). “A notice to appear was issued on September 29, 2010, charging that the respondent is removable based on the fact that he was convicted of a crime of violence for which the term of imprisonment is at least 1 year, which is an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2006). Subsequently, a charge was added that the respondent was convicted of a theft or burglary offense for which the term of imprisonment is at least 1 year, which is also an aggravated felony under section 101(a)(43)(G). At removal proceedings, a record of the respondent’s Page 1 of 4
  2. 2. convictions was entered into evidence, and he admitted that he had been convicted of both offenses but denied removability. The Immigration Judge found the respondent removable on both grounds. On appeal, the respondent claims that he is not removable because, as an accomplice, he was not convicted of the aggravated felony offenses themselves.” At p. 795The BIA found that the underlying criminal statute was divisible which furthercould have complicated the analysis if the question of how to approach thedivisibility issue had not already just been decided. “Section 5-2-403(a) of the Arkansas Code Annotated includes within the definition of an “accomplice” a person who (1) “solicits” another to commit an offense, (2) aids another in the commission of the offense, or (3) fails to prevent the commission of the offense. Because this definition encompasses both actors who are and those who are not aiders and abetters, we find that the statute is divisible. See Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012)” At p. 797 [Emphasis added.]Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012) 1 held: “A criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief.”The crux of the matter under consideration is of significant effect. The Boardsummed it up in this passage: “The Second Circuit has identified three analytical approaches to potentially divisible statutes. Lanferman v. Bd. of Immigration Appeals, 576 F.3d at 90-92 (citing Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116 (2d Cir. 2007), abrogated on other grounds by Nijhawan v. Holder, 557 U.S. 29 (2009), and James v. Mukasey, 522 F.3d 250 (2d Cir. 2008)). Under the first approach, divisibility would be permitted “where the alternative means of committing a violation are enumerated as discrete alternatives, either by use of disjunctives or subsections.” Id. at 90. Under the second approach, divisibility would be permitted “where the statute of conviction is phrased in the disjunctive or divided into subsections, or where the immigration statute invites inquiry into the facts of the underlying conviction at issue.” Id. at 91-92 (citing Singh v. Ashcroft, 383 F.3d 144, 148 (3d Cir. 2004)). Under the third approach, divisibility would be permitted in1 http://www.justice.gov/eoir/vll/intdec/vol25/3744.pdf (March 9, 2012) Page 2 of 4
  3. 3. “all statutes of conviction . . . regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct.” Id. at 90 (quoting Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d at 128) (internal quotation marks omitted). The issue before us, under the terms of the remand, is which of these approaches is most suitable for application in the immigration context. For the following reasons, we adopt the third approach.” At p. 722 [Emphases added.]In declining to adopt the first identified approach, the BIA explained itsreasoning in the following way. “In the first formulation described by the Second Circuit, the modified categorical approach may only be applied if certain structural or grammatical statutory characteristics are present on the face of the statute of conviction, such as the enumeration of a list of qualifying alternative elements in discrete subsections or the separation of various means of committing the offense within disjunctively divided words or phrases. The Fifth Circuit has followed this formulation in several cases. See, e.g., Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006); Larin- Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006). However, we find this methodology unnecessarily formulaic and confining as regards the appropriate purposes to be served by the modified categorical approach in the immigration context. In our view, the structural design of a criminal statute is frequently of limited relevance to how the statute is interpreted by the courts charged with its application and thus is, at best, just a starting point from which a full explication of the statute may be developed. ....” At p. 725 [Emphasis added.]In declining to adopt the second identified approach, the BIA remarked in thefollowing passages and accompanying footnote 4: “... Under this formulation, the modified categorical approach is applied when either (1) the statute of conviction is phrased in the disjunctive or divided into subsections such that some variations of the crime of conviction meet the requisites for removability under the immigration laws and others do not, or (2) the relevant removability provision “invite[s] inquiry into Page 3 of 4
  4. 4. the facts underlying the conviction.” Id. at 161-62; see also Stubbs v. Att’y Gen. of U.S., 452 F.3d 251, 254-55 (3d Cir. 2006).” At p. 726 * * * * * “Even disregarding that Nijhawan has fully resolved the question of the applicability of the categorical approach in the particular context of the $10,000 loss provision at issue there and in Singh,4 we are not inclined to adopt the Third Circuit’s unique approach. We do not regard the “invites inquiry” standard as a useful one, since whether or not a statute contains an “invitation” appears to be an inexact concept that manifests itself primarily in the eye of the beholder. ....” At p. 727 ________________ “ 4 In Nijhawan, the Court identified other aggravated felony provisions that contain circumstance-specific aspects to which the categorical approach is inapplicable, including section 101(a)(43)(K)(ii) of the Act, which provides that an aggravated felony for transportation for the purpose of prostitution must be “committed for commercial advantage.”” At p. 727 [Emphases added.]The BIA has adopted the broadest approach analyzing criminal statutes todetermine if the actual conviction in question renders the alien removable. Thisapproach was selected in an effort to be as fair as possible and simply because as isnoted above “all statutes of conviction ... [might be divisible] ... regardless of their... [grammatical] ... structure, so long as they contain an element or elements thatcould be satisfied either by removable or non-removable conduct.” Supra Page 4 of 4

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