The BIA issued an important opinion detailing the latest turn in the categorical approach analysis. Specifically addressing the crime of violence type of aggravated felony and the firearms offense basis of removal, Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Pauley, Malphrus, and Greer, Board Members), promises to affect crimmigration law analyses across the board. Board member Pauley wrote the panel’s opinion. This case involved an LPR convicted of violating Utah’s felony discharge of a firearm offense, Utah Code § 76-10-508.1. DHS successfully argued before an immigration judge [...]
BIA: Adjustment is admission for removal; refines what constitutes “element” of offense
The Board of Immigration Appeals did a lot in a short ten-page decision: held that adjustment of status constitutes an admission when determining removal, providing some clarity on when a sentencing enhancement constitutes an “offense,” and ultimately held that the military’s version of sodomy by force is a crime of violence type of aggravated felony. Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014) (Pauley, Guendelsberger, and Malphrus, Board members). Board member Pauley wrote the panel’s decision. This case involved a member of the U.S. Army convicted of sodomy by force in [...]
SCOTUS takes two criminal cases with potential crimmigration impact
Last week the U.S. Supreme Court agreed to hear two cases with possible crimmigration law implications. Attesting to immigration law’s broad intersection with criminal procedure and criminal law, the first case concerns criminal procedure while the second concerns criminal law. Fourth Amendment: Heien v. North Carolina The first case, Heien v. North Carolina, No. 13-604, asks the Court to consider whether a police officer’s mistaken understanding of criminal law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop. The police officer pulled [...]
SCOTUS: Affirms that “crime of violence” requires use of violent force
The U.S. Supreme Court affirmed its ten-year-old interpretation of the “crime of violence” type of aggravated felony in a case about domestic violence. United States v. Castleman, No. 12-1371, slip op. (U.S. March 26, 2013) (Sotomayor, Roberts, Kennedy, Ginsburg, Breyer, and Kagan, JJ.). Justice Sotomayor wrote the Court’s opinion. Justice Scalia wrote a separate opinion concurring in part with the reasoning and concurring with the judgment. Justice Alito concurred in the judgment, which Justice Thomas joined. This case involved a man who was convicted of “intentionally or knowingly causing [...]
4th Cir: Can’t use modified categorical approach to examine alternative prongs of a single element
By Matthew Meyers In 2009, Thomas Royal was convicted of unlawful possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the trial court found that Royal was an armed career criminal, as defined by the Armed Career Criminal Act (“ACCA”). This finding triggered a minimum sentence of fifteen years. On appeal, the Fourth Circuit reversed his sentence. The court held that, in light of the recent Supreme Court decision Descampsv. United States, 133 S. Ct. 2276 (2013), the district court had misapplied the ACCA. Royal also appealed his conviction because [...]
BIA: Interference with helicopter is not crime of violence, but is public safety offense
In a published opinion, the Board of Immigration Appeals held that a conviction for interfering with the operation of an aircraft is not a crime of violence, but it is a removable “public safety” offense. Matter of Tavarez Peralta, 26 I&N Dec. 171 (BIA 2013) (Pauley, Mullane, and Hoffman, Board Members). Board Member Mullane wrote the panel’s opinion. This case received the rare oral argument before the BIA. Tavarez Peralta, an LPR, was convicted of violating 18 USC § 32(a)(5) which prohibits “interfer[ing] with or disabl[ing], with intent to endanger the safety of any person or with a [...]
IJ: Indiana resisting law enforcement isn’t crime of violence
A Chicago immigration judge recently held that resisting law enforcement in violation of Indiana Code § 35-44-3 is not a crime of violence type of aggravated felony. Matter of ----, slip op. (Chicago Immigr. Ct. Dec. 3, 2012) (Fujimoto, IJ). This case involved an LPR who was convicted and sentenced to 545 days imprisonment. According to the court, at the time of conviction the statute penalized “‘[a] person who knowingly or intentionally…flees from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop’” and “‘the [...]
5 Cir: AR aggravated assault isn’t crime of violence
The U.S. Court of Appeals for the Fifth Circuit held that a conviction for aggravated assault in Arkansas, Ark. Code § 5-13-204(a)(1), is not a crime of violence. United States v. Esparza-Perez, No. 11-50090, slip op. (5th Cir. May 14, 2012) (Garza, Dennis, and Higginson, JJ.). Judge Higginson wrote the panel’s decision. This case involved an individual convicted of attempted illegal reentry under INA § 276. Had the prior conviction for Arkansas aggravated assault been deemed a crime of violence, Esparza-Perez would have been subject to a sixteen level sentencing enhancement. Esparza-Perez, [...]