Just one day after the U.S. Supreme Court issued its latest decision explaining how the categorical approach of statutory analysis applies to deportation cases, the Board of Immigration Appeals issued a decision ignoring everything the Court said. In Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA June 2, 2015), the BIA held that immigration judges must consider the “ordinary case” when determining whether a conviction constitutes a crime of violence aggravated felony under 18 U.S.C. § 16(b), the second of two alternative definitions of “crime of violence.”
This case involved an LPR who was convicted of felony battery in Florida and sentenced to 24 months imprisonment. Id. at 595. After one round at the BIA, the IJ terminated removal proceedings. DHS appealed to the BIA. Id. at 594.
To reach its conclusion in this case that the “ordinary case” approach is best, the BIA turned to its earlier decision in Matter of Martinez, 25 I&N Dec. 571 (BIA 2011). There the Board explained, “We do not rule out an offense simply because there exists a conceivable factual scenario in which the statute could be applied to conduct that would not constitute a crime of violence. See James v. United States, 550 U.S. 192, 208 (2007). Instead, we look to the risk of violent force that is present in the ‘ordinary’ case arising under the statute of conviction” (for my earlier analysis of Matter of Martinez, see here). The James decision upon which the Board’s analysis hinged involved a criminal sentencing statute called the Armed Career Criminal Act. In particular, the key language concerns the ACCA’s “residual clause” that defines a felony that “involves conduct that presents a serious potential risk of physical injury to another” as a “violent felony.” 18 U.S.C. § 924(e)(2)(B)(ii). This language is similar (but not identical) to the crime of violence definition at 18 U.S.C. § 16(b).
The James/Matter of Martinez framework contrasts with the Supreme Court’s repeated pronouncement that “the adjudicator must ‘presume that the conviction rested upon nothing more than the least of the acts criminalized’ under the state statute.” Mellouli v. Lynch, No. 13-1034, slip op. at 6 (June 1, 2015) (quoting Moncrieffe v. Holder, 569 U.S. – (2013)).
Sloppily, the Board didn’t even mention that the Court reiterated this point the day before in Mellouli. It did, however, note that the Court said as much in the 2013 Moncrieffe decision quoted by Mellouli. Because Moncrieffe and James, the Supreme Court case upon which Matter of Martinez turns, disagree, the Board had to decide which analysis to use: “the ‘ordinary case’ analysis of James or the ‘least culpable conduct’ test of Moncrieffe.” Matter of Francisco-Alonzo, 26 I&N Dec. at 596. The Board chose to follow James. In its view, “Nothing in Moncrieffe purports to cast doubt on James, much less overrule it.” Id. at 599.
This was an unfortunate decision for three reasons. First, as Moncrieffe and Mellouli illustrate, the Supreme Court’s least culpable conduct perspective is firmly embedded in categorical approach doctrine. Second, that view seems to be here to stay. It’s hard to imagine a situation in which the Court has more adamantly affirmed its embrace of the least culpable conduct requirement than the fact that it said so all of one day before the Board issued its decision. Third, James is likely on its last legs. A case involving the ACCA’s residual clause that James interpreted was reargued in April and didn’t get a particularly kind reception from the justices. It’s quite possible that the Court will substantially narrow residual clause’s reach when it issues its decision some time this month. It might even go so far as to hold the residual clause as unconstitutionally void because it is too vague for anyone to know what it punishes. At that point, the BIA’s cases building on James and its interpretation of the residual clause will be highly suspect.
Aside from the oddity of the Board’s analysis, I’m struck by the fact that the Board seems insistent on deviating from the categorical approach as explained by the Supreme Court over and over again. The Board continues to try to erode the categorical approach. Even if we ignore the fact that the categorical approach has been part of immigration law adjudications for roughly a century, the simple reality is that the Supreme Court has shown no signs of retreating. In numerous cases it has indicated that it believes the Immigration and Nationality Act requires use of the categorical approach, that this is a constitutionally sound analytical framework, and that it is a prudent method of deciding deportability and criminal sentencing. Hopefully this message will reach the BIA some day.
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