Matter of REYES, 28 I&N Dec. 52 (A.G. 2020)
The Attorney General has issued a decision in Matter of REYES, 28 I&N Dec. 52 (A.G. 2020).
HEADNOTE:
(1) If all of the means of committing a crime, based on the elements of the statute of conviction, amount to one or more of the offenses listed in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43), then an alien who has been convicted of that crime has necessarily been convicted of an aggravated felony for purposes of the INA.
(2) The respondent’s conviction for grand larceny in the second degree under New York Penal Law § 155.40(1) qualifies as a conviction for an aggravated felony for purposes of the INA. DHS charged that the respondent had been convicted of either aggravated-felony theft or aggravated-felony fraud, as defined in section 101(a)(43)(G) and (M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(G) and (M)(i). Larceny by acquiring lost property constitutes aggravated-felony theft, and the parties do not dispute that the other means of violating the New York statute correspond to either aggravated-felony theft or aggravated-felony fraud.
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The DHS has the burden of proving removability. The DHS charges two distinct aggravated felonies. At trial and on appeal to the BIA, DHS can sustain neither charge. Therefore, according to Billy, to make the respondent removable, Immigration Judges should look for the generic elements of the respondent’s crime in any of the separate sections defining “aggravated felony” and combine them as necessary to create a new aggravated felony.
In other words, even if the respondent has not committed any listed “aggravated felony” under the so-called “categorical approach,” the judge must rewrite the statute as necessary to create new aggravated felonies that overcome the shortcomings and limitations of the actual statutory language used by Congress. The judge need not find that the respondent was convicted of any particular aggravated felony listed in the statute. It is enough that he or she committed the elements of some generic crime that would be some aggravated felony if we rewrote the definition as we think it should have been written to maximize deportations.
As my friends and colleagues Judge Jeffrey S. Chase (Jeffrey S. Chase Blog) and Dan Kowalski (LexisNexis Immigration Community) pointed out to me, this is not the first time that a GOP AG has decided to “diss” the Federal Courts by attempting to rewrite the “categorical approach” out of existence. AG Mukasey tried something similar with crimes involving moral turpitude during the Bush II Administration in Matter of Silva-Trevino, 24 I&N Dec. 24 I&N Dec. 608 (A.G. 2006). The Federal Courts didn’t agree, and Attorney General Eric Holder eventually vacated Mukasey’s lousy decision. http://www.immigrantdefenseproject.org/wp-content/uploads/2011/03/AG-Order-Vacating-Silva-Trevino-2015.pdf
All of us who believe in due process and equal justice should look forward to a day when a future Attorney General and/or Congress will vacate all of the misguided, biased, anti-immigrant “precedents” by Billy the Bigot, Gonzo Apocalypto, and Whitaker and thereby restore some semblance of fairness, normalcy, and predictability to the law. In the meantime, we’ll see whether Billy’s attempt to undo the “categorical approach” fares any better than Mukasey’s with the Federal Courts.
Litigate litigate, litigate! It’s important that the Federal Courts feel and see the pain caused by the DOJ’s biased rewriting of established principles of immigration law to create unnecessary controversies where there previously were none. Immigration law has never been short of legitimate controversies for litigation. But this regime’s unprecedented attempt to rewrite immigration law by fiat has upset those areas that previously were settled, thereby creating new waves of avoidable litigation and controversy where previously there was some agreement and efficiency. No wonder the Immigration Court backlog has mushroomed out of control. Sadly, the regime’s maliciously incompetent approach to the Immigration Courts resembles its maliciously incompetent approach to the COVID-19 pandemic. Basically a total disaster!
I also credit Jeffrey with the “Do It Yourself” observation. Or, as Dan pointed out, Billy’s approach could be called “Tinker Toy Analysis” or “Legoland Analysis.”
Due Process Forever!
PWS
07-31-20