By Nicholas Anderson and Linus Chan The Supreme Court’s decision on Tuesday to grant cert in the Texas v. United States case has gotten quite a bit of deserved attention among the media, pundits, and immigration advocates and scholars. However, crimmigration nerds should be paying attention to a different Supreme Court cert. grant on the same day. Despite not featuring an immigrant or even immigration law directly, United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015) (docket number 15-6092), will have a significant impact on anyone facing removal from the United States based on a [...]
GA Supreme Court: “Could” be deported isn’t good enough for aggravated felony conviction
The Georgia Supreme Court took a strong stance in defense of the Sixth Amendment’s right to effective assistance of counsel recently when it held that advising a migrant defendant facing an aggravated felony conviction that he “could” be deported violated the U.S. Constitution. Encarnacion v. State, No. S14A0690, slip op. (Ga. September 22, 2014). Chief Justice Thompson wrote the court’s decision. This case involved a migrant convicted by way of a guilty plea to burglary. The parties and the court agree that this is a burglary offense as defined for immigration law purposes, INA § [...]
9 Cir: Clarifies difference between divisible & indivisible statutes
The U.S. Court of Appeals for the Ninth Circuit jumped into the minutia of crimmigration law with a recent decision on a critically important topic: how to distinguish between divisible and indivisible statutes. Rendon v. Holder, No. 10-72239, slip op. (9th Cir. Aug. 22, 2014). Judge Reinhardt issued the court’s opinion. This case involved an LPR who was convicted of second-degree burglary in California. The BIA found that his conviction, pursuant to Cal. Penal Code § 459, constituted an attempted theft offense type of aggravated felony under INA § 101(a)(43)(U). In relevant part, the [...]
SCOTUS: Can’t use modified categorical approach if statute isn’t divisible
In its final crImmigration case of the 2012-13 Term, the U.S. Supreme Court clarified that courts can not use the modified categorical approach of statutory interpretation when a statute of conviction is not divisible. Descamps v. United States, No. 11-9540, slip op. (U.S. June 20, 2013) (Kagan, Roberts, Scalia, Kennedy, Ginsburg, Breyer, and Sotomayor, JJ.; Kennedy, concurring; Thomas, concurring in the judgment; Alito, dissenting). Instead, courts must rely on the categorical approach alone which allows consideration of the crime’s elements. The modified categorical approach, in contrast, [...]
BIA: Illegal deportation doesn’t strip BIA of jurisdiction; says prosecutor’s report is part of record of conviction
The Board of Immigration Appeals held that an illegal deportation carried out by DHS does not deprive the Board of jurisdiction to consider the deported individual’s appeal. Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012) (Pauley, Guendelsberger, and Adkins-Blanch, Board Members). In addition, in deciding that the Arkansas residential burglary offense is an aggravated felony, the Board considered a prosecutor’s report as part of the record of conviction. Board Member Pauley wrote the panel’s opinion. This case involved an LPR convicted as an accomplice to robbery, Ark. Code Ann. § [...]