Bucking the Supreme Court’s persistent emphasis on the categorical approach, the Board of Immigration Appeals rejected that analytical method for the controlled substance offense’s personal use exception. Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014). Board Member Pauley wrote the panel’s decision.
This case involved an LPR convicted under Nevada law of possessing more than one ounce of marijuana. DHS claimed that this constitutes a controlled substance offense under INA § 237(a)(2)(B)(i). The immigration judge disagreed. Instead of engaging in a “circumstance-specific” inquiry of the migrant’s conviction, as DHS wanted, the IJ stuck to the categorical approach. Id. at 409.
Traditionally, courts have used the categorical approach to statutory analysis to determine whether a crime can lead to removal. Under the categorical approach, judges can only consider the elements of a criminal statute to see if it pairs up with the categories of crimes listed in the Immigration and Nationality Act (INA). The modified categorical approach lets judges look at a small number of documents created during the criminal proceeding, but only when a statute’s elements are described in the disjunctive such that the statute can be thought of as referencing different crimes. The Supreme Court has long required the categorical and modified categorical approaches in immigration law and, as Professor Alina Das wrote in a 2011 article titled The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, immigration courts and federal courts have used the categorical approach for decades (for another insightful article on the categorical approach, see Rebecca Sharpless, Toward A True Elements Test). Most recently, the Supreme Court reiterated the categorical and modified categorical approaches’ role in Descamps v. United States, 133 S. Ct. 2276 (2013), though in a case about a criminal sentencing enhancement.
The “circumstance-specific” approach is a relatively new deviation from the categorical and modified categorical approaches. In Nijhawan v. Holder, 557 U.S. 29, 22 (2009), the Court held that courts can consider “the specific way in which an offender committed the crime on a specific occasion” when addressing the aggravated felony category encompassing crimes that “involve fraud or deceit in which the loss to the victim or victims exceeds $10,000.” As I write in my forthcoming book Crimmigration Law (American Bar Association 2015), the circumstance-specific approach “represents a dramatic and important move away from courts’ traditionally steadfast reliance on the categorical approach.”
Despite the Supreme Court’s long emphasis on the categorical approach and the narrowness of the Nijhawan Court’s analysis (focused as it was on the specific language of the fraud or deceit type of aggravated felony), the BIA has expanded the circumstance-specific approach’s reach. In Matter of Davey, 26 I&N Dec. 37, 39 (BIA 2012), the Board applied this unique analytical method to the controlled substance offense’s exception for a single offense involving 30 grams or less of marijuana for personal use. The Board held that the circumstance-specific approach was the proper method to use to determine whether a migrant was involved in a “single offense.”
The BIA’s decision in Dominguez-Rodriguez continues the project it began in Matter of Davey. In Dominguez-Rodriguez, it applied the circumstance-specific approach to figure out whether a migrant’s offense involved “personal use” of 30 grams or less of marijuana. 26 I&N Dec. at 411.
Perhaps more importantly than its holding, the Board set the groundwork for continued encroachments by the circumstance-specific approach into the categorical approach. The Board noted that “the applicability of the categorical approach necessarily depends on the legislative intent underlying the particular provision under review.” Id. at 412.
This is a simple statement with enormous potential implications. This means that the Board does not presume that the categorical and modified categorical approaches are the only permissible methods by which to analyze criminal statutes. Instead, every section of the INA is subject to inquiry through the lens of legislative intent. The Supreme Court has made much of the fact that the categorical approach respects the Constitution, the INA’s text, and the limited nature of adjudicative resources. The BIA seems ready to throw all that out the window. This is not particularly surprising. It has consistently done everything possible to thwart the Supreme Court’s insistence on the categorical approach. Still, the BIA is not the last word on this issue. I’m hopeful that eventually the Court will force the Board to fall back in line.
In addition to expressing its doubt about the role that the categorical approach should occupy in immigration law, the Board also articulated a test of sorts for when it is appropriate to use the circumstance-specific approach: “when specific limiting language is located in the text of ‘the [Immigration and Nationality Act] proper’ (rather than in the text of a criminal statute that is incorporated into the Act by reference), this ‘suggests an intent to have the relevant facts found in immigration proceedings.’” Id. at 412.
Let immigration attorneys beware: this is a barely-hidden signal to DHS trial attorneys that the BIA is ready to expand the circumstance-specific approach’s reach.
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