https://www.justice.gov/eoir/page/file/959656/download
Here’s the BIA headnote:
“In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record only to discern whether statutory alternatives define “elements” or “means,” provided State law does not otherwise resolve the question.”
PANEL: Appellate Immigration Judges Pauley, Greer, Malphrus
OPINION BY: Judge Pauley
CONCURRING OPINION BY: Judge Malphrus
***********************************
This case is unusual because BIA Judges seldom file “separate opinions” in published decisions these days.
In his concurring opinion, Judge Garry D. Malphrus appears to be both questioning whether the Supreme Court’s approach to statutory “divisibility” analysis comports with congressional intent in immigration matters and inviting Congress to perhaps change the INA so that the BIA and the Immigration Judges could examine the facts of the case, as set forth in the record of conviction, to determine whether the individual should be removed. Judge Malphrus says in his conclusion:
“Here, we must presume that the respondent committed the least of the acts criminalized within the range of conduct punishable under his statute of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). This is true even though the respondent’s plea agreement indicates that he did more—specifically, that he knowingly discharged a firearm at another, and thus he committed an aggravated felony crime of violence. See id.
The approach to divisibility required by Descamps and Mathis will result in immigration proceedings being terminated for many aliens who have committed serious crimes in the United States. See, e.g., Ramirez v. Lynch, 810 F.3d 1127, 1134–38 (9th Cir. 2016) (reversing the order of removal upon concluding that the California statute proscribing felony child abuse was not divisible, and thus it was improper to consider the conviction records in determining whether the alien’s conviction constituted an aggravated felony crime of violence). [footnote omitted]. It is for Congress to determine whether this approach is consistent with its intent regarding the immigration consequences of such criminal conduct.”
*****************************************
Another observation: How could an unrepresented respondent charged under this section possibly defend himself consistent with due process when the law is so complex and convoluted. This particular respondent was fortunate enough to have a lawyer, and as we can see, he was able to achieve a favorable result. But, recent studies have shown that the overwhelming number of respondents in detention (as individuals charged as “agfels” must be) must proceed without counsel. http://wp.me/p8eeJm-Gv
PWS
04-24-17
I found this portion of the concurring opinion to be particularly interesting: “It is not at all clear that holding a mini-trial to determine what conduct—within the range of conduct punished by a statute—an alien actually committed is any more onerous than deciding whether a particular statute provides separate elements of a crime or alternative means of committing the offense.”
As the Supreme Court said in Mellouli v. Lynch, “[b]y focusing on the legal question of what a conviction necessarily established, the categorical approach ordinarily works to promote efficiency, fairness, and predictability in the administration of immigration law.” Slip Op. at 7. Looking only at the “efficiency” factor – I would agree that sometimes determining the underlying conduct in a given case is easier than determining whether the statute provides separate elements of a crime or alternative means of commission. However, overall systemic efficiency is not achieved by repeated individualized analysis. Efficiency is achieved by establishing precedent that Immigration Judges can follow. Once precedent establishes that a particular crime is or is not divisible, Immigration Judges are saved from having to do a particularized analysis in each subsequent case involving that crime. That is, if there is precedent to follow. All the more reason for the Board to issue more published, precedential decisions, in my humble opinion.
Thanks, Alexa!
Good points, particularly about systemic efficiency.
Best,
Paul