No one has ever said that the categorical approach is straightforward. In a decision issued yesterday, the BIA managed it make it tougher to follow. Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [hereinafter Matter of Chairez II] (Pauley, Greer, and Malphrus). Board Member Pauley wrote the panel’s decision. Immigration attorneys and judges are required to use the categorical approach to determine whether a crime falls into a category of removable offense listed in the INA. The same analysis applies to possible sentencing enhancements in criminal proceedings, thus categorical approach [...]
CrImmigration Law symposium at University of Denver Friday & Saturday
The Denver University Law Review is hosting “CrImmigration: Crossing the Border Between Criminal Law and Immigration Law” this Friday and Saturday. I’m thrilled that the journal’s editors decided to bring this topic to DU Law, where I teach, and to make it available online live through a livestream. As crimmigration.com readers are keenly aware, the boundary between criminal law and immigration law no longer has much meaning for literally hundreds of thousands of people every year. Interactions with the criminal justice system frequently lead to immigration detention and removal [...]
Lawsuit reveals DACA data treasure trove
Litigation often reveals fascinating information tough to obtain otherwise and the states’ lawsuit against the federal government’s use of its executive powers to provide temporary lawful status to many migrants already in the United States is proving to be no exception (for more on that lawsuit see my article here). A document that the United States filed in federal court last week provides a much-needed glimpse into DACA’s internal operations. In a formal declaration, Donald W. Neufeld, the associate director for service center operations at USCIS, gives a detailed accounting of the [...]
Immigration took center stage among federal criminal cases during FY 2011-12
A new report indicates that federal law enforcement agents, prosecutors, and courts are significantly involved in regulating immigration law through the criminal process. Mark Motivans, Federal Justice Statistics, 2011-2012 (Jan. 2015). By overall historical standards, this is quite anomalous, but it is in line with the trend we’ve seen in recent years (see my analysis of parallel data for fiscal year 2010). Law enforcement investigations and arrests for alleged immigration law violations are at eye-catching rates, with the bulk of those arrested individuals soon finding themselves in federal [...]
BIA: Sexual abuse of a minor based on statutory rape of 16-or 17-year-old must include meaningful age differential
The Board of Immigration Appeals held that a statutory rape offense must include, as an element, a meaningful age difference between the abuser and victim in order to be classified as sexual abuse of a minor, a type of aggravated felony. Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015). Board Member Malphrus wrote the panel’s opinion. This case involved an LPR convicted of unlawful intercourse with a minor more than three years younger, a violation of Cal. Penal Code § 261.5(c). An IJ concluded that this offense constituted sexual abuse of a minor under INA § 101(a)(43)(A). On [...]
Supreme Court agrees to decide whether immigration deadline is flexible
Last week, the U.S. Supreme Court announced that it would decide whether a regulatory deadline by which motions to reopen must be filed could be bent. Mata v. Holder, 14-185, 2015 WL 213642 (Jan. 16, 2015). The Court’s decision to grant the petition for writ of certiorari last Friday was understandably clouded by news that it also agreed to hear a collection of cases involving equal marriage rights. Though less prominent, Mata is of significance to anyone involved in immigration law. This case arises from a time limit on when individuals in removal proceedings must file a motion to reopen. [...]
Online symposium on crimmigration law: Supreme Court hears Mellouli v. Holder
Can a sock result in removal? That’s the practical question that the Supreme Court will have contend with when it hears oral arguments in Mellouli v. Holder tomorrow. To clarify the case, crImmigration.com is launching an online symposium today featuring several practitioners and scholars with special insight into the key issues Mellouli raises. Today’s contributors—Alina Das, Jennifer Lee Koh, Nancy Morawetz, Maureen Sweeney, and Craig Shagin—represent a cross-section of academics and practitioners who have followed the issues that Mellouli raises for some time. All bring unique [...]
Revisionist History: The Government’s Latest Attempt to Ignore the Categorical Approach in Mellouli v. Holder
By Alina Das For the fourth time since 2006, the Supreme Court will be considering whether a minor drug offense must render a lawful permanent resident deportable from his home and family in the United States. In Mellouli v. Holder, the Court will be addressing whether Mr. Mellouli’s misdemeanor conviction for possession with intent to use drug paraphernalia—in this case, a sock—under Kansas law must be considered a controlled substance offense triggering deportation. Federal law—and more specifically, federal drug schedules—define what types of substances may trigger this ground of [...]
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