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Two New Published Board of Immigration Appeals Decisions Regarding Aggravated Felonies and Deriving Citizenship

The Board of Immigration Appeals recently published two new cases. Matter of Chairez discusses how Immigration Judges and the Board will employ the modified categorical approach as it applies to whether criminal statutes are divisible. Matter of Cross discusses who is considered a legitimated child for the purposes of deriving U.S. citizenship in countries that have removed the legal difference between children born in or out of wedlock. I have summarize each case below.

Matter of Chairez, 26 I&N Dec. 478 (BIA 2015); The Board held the divisibility analysis for a criminal statute is subject to the interpretation of the Circuit Court decisions in the jurisdiction where the removal proceedings take place. The Board recognized that their decision in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) is still good law and the Board will follow the Descamps v. U.S., 133 S.Ct. 2276 (2013) guidance for how to apply the divisibility analysis of the categorical approach. However, in Circuits where the Courts have interpreted Descamps differently than the Board has, the Board will follow that divisibility anaysis of that Circuit. In footnote 3, the Board identified that two CIrcuits (the Fourth and Eleventh) follow the Chairez divisibility analysis, while three (First, Third and Tenth) use a different analysis, and there is confusion in the NInth as to what they use.

Matter of Cross, 26 I&N Dec. 485 (BIA 2015); The Board held that for the purposes of a citizenship derivation analysis, a child has been “legitimated” by their biological parent if the jurisdiction in which they were born or previously lived eliminated the legal distinctions between children born in or our of wedlock. This case eliminated the rule that the subsequent marriage of the biological parents was the only way to legitimate a child born out of wedlock in Jamaica.

John Gihon is an immigration and criminal defense attorney with the law offices of Shorstein, Lasnteski & Gihon. If you or a loved one has been accused of being an aggravated felon, or believe you may be a U.S. citizen, call us today for a consultation.