Category: Larissa v.

⚖️👨🏻‍⚖️🤡👎🏻WHERE’S THE COMPETENCE? — BIA’s Misguided Decade-Long Effort To Unlawfully Disqualify Man From Relief Ends Badly, With Third Court Of Appeals Reversal In The Same Case! — THIS is “Expert Adjudication?” — No Wonder The Backlogs Are Endless!

 

https://www2.ca3.uscourts.gov/opinarch/192594p.pdf

Larios v. Attorney General, 3rd Cir., 10-14-20

PANEL: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges

OPINION BY: Judge KRAUSE

KEY QUOTE:

To determine if a noncitizen convicted of a state offense is subject to immigration consequences prescribed in federal law, the Supreme Court has instructed courts to compare whether the elements of the state offense define a crime that is the same as or narrower than the generic federal offense. See Descamps v. United States, 570 U.S. 254, 257 (2013). This

2

analysis, which has come to be known as the “categorical approach,” sounds simple in theory but has proven difficult (and often vexing) in practice, necessitating a “modified categorical approach” and generating an evolving jurisprudence around when the categorical or modified categorical approach applies.

That difficulty is borne out in the convoluted history of this case. Here, in what is now Lazaro Javier Larios’s third petition for review from prior reversals, the Board of Immigration Appeals (BIA) applied the categorical approach and held Larios ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1) for having been convicted of “a crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Because we conclude the crime at issue—New Jersey’s terroristic-threats statute, N.J. Stat. Ann. § 2C:12-3(a)—should have been analyzed under the modified categorical approach, and, under that approach, the particular offense of which Larios was convicted is not a crime involving moral turpitude, we will grant the petition for review.

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Three strikes and you’re out?⚾️

Yes, it’s unnecessarily complicated. That’s mostly Congress’s fault. But, what good is a supposedly “expert tribunal” that can’t correctly resolve a complicated issue after three tries spanning 10 years?

PWS

10-15-20

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