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BIA: Look at elements of offense to determine if statute is divisible

The BIA held that a statute of conviction is divisible if some conduct that satisfies an element of the offense could result in removal while other conduct would not. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012) (Cole, Pauley, and Wendtland, Board members). Board member Pauley wrote the panel’s decision.

This case involved an LPR convicted of menacing in the second degree, NY Penal Code § 120.14. An IJ determined that this was a firearms offense under INA § 237(a)(2)(C). Upon remand from the U.S. Court of Appeals for the Second Circuit, the BIA was required to determine whether the New York statute of conviction is divisible under the modified categorical approach to statutory analysis. Lanferman v. Bd. of Immigr. Appeals, 576 F.3d 84, 86 (2d Cir. 2009).

The Board considered three approaches used by the Second Circuit to identify whether a statute is divisible. Matter of Lanferman, 25 I&N Dec. at 727.

It first rejected an approach under which “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.” Matter of Lanferman, 25 I&N Dec. at 725.

So too did the Board reject an approach that allows use of a modified categorical analysis where “the relevant removability provision ‘invite[s] inquiry into the facts underlying the conviction.’” Matter of Lanferman, 25 I&N Dec. at 726 (quoting Singh v. Ashcroft, 383 F.3d 144, 161-62 (2d Cir. 2004)).

Ultimately, the BIA adopted the “broadest” analytical method for use in immigration cases. Matter of Lanferman, 25 I&N Dec. at 727. Under the chosen approach, “divisibility wouldbe permitted in ‘all statutes of conviction . . . regardless of their structure,so long as they contain an element or elements that could be satisfied eitherby removable or non-removable conduct.’” Matter of Lanferman, 25 I&N Dec. at 727 (quoting Lanferman, 576 F.3d at 90).

Interestingly, the Board explained that the broadest approach to determining whether a statute is divisible is appropriate because “the categorical approach itself need not be applied with the same rigor in the immigration context as in the criminal arena, where it was developed.” Matter of Lanferman, 25 I&N Dec. at 728.

For support of this proposition, the Board cited Conteh v. Gonzales, 461 F.3d 45, 55-56 (1st Cir. 2006), in which the First Circuit, as the Board put it, “not[ed] several differentiating factors between the criminal and immigration contexts that warrant not applying the categorical approach in the same manner.” Matter of Lanferman, 25 I&N Dec. at 728. It could have, it seems to me, added the Supreme Court’s two recent decisions interpreting the fraud or deceit category of aggravated felony to its list, Nijhawan v. Holder, 557 U.S. 29 (2009), and Kawashima v. Holder, 565 U.S. –, No. 10-577, slip op. (Feb. 21, 2012) (about which I wrote in an earlier post).

The BIA then went on to apply its newly adopted divisibility approach to New York’s menacing statute of conviction and concluded that it is divisible. Matter of Lanferman, 25 I&N Dec. at 731. Furthermore, because the criminal complaint stated that the noncitizen used a revolver to commit the offense and the defendant-respondent subsequently admitted to doing so, under the modified categorical approach the conviction was properly deemed a firearms offense under INA § 237(a)(2)(C). Matter of Lanferman, 25 I&N Dec. at 733.

 

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