Articles Posted in Naturalization/Citizenship

In the past couple of weeks, multiple courts, including the Board of Immigration Appeals, the Eleventh Circuit Court of Appeals and even the U.S. Supreme Court have issued decisions which will have an effect on thousands of non-U.S. citizens facing criminal prosecutions in Florida. Non-citizens in criminal court face not only the prospects of jail, prison, probation and a loss of civil rights, but also of the possibility of being deported or never being able to obtain the U.S. citizenship. Crimmigration is the area of law that helps to protect non-citizens’ immigration status in criminal court and to defend non-citizens facing deportation for their criminal histories. Here are some of the recent crimmigration decisions that will come into play for Florida non-citizen criminal defendants.

In Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015) the Board held that Fla. Stat. § 784.041(1) (felony battery) is categorically a crime of violence under 18 U.S.C. § 16(b). The Board confirmed that when analyzing a criminal statute to determine if it is a crime of violence under 18 U.S.C. § 16(b), the Board uses an “ordinary case” not “minimum conduct” analysis. The Board distinguished cases analyzed under 18 U.S.C. § 16(a) (element-based) which uses a minimum conduct approach. The proper inquiry is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”

In U.S. v. Keelan, No 13-11878 (11th Cir. 2015), a very similar decision to the Board’s holding in Matter of Francisco-Alonzo, the Eleventh Circuit held that when analyzing a criminal statute to determine if it is a crime of violence under 18 U.S.C. § 16(b) the Board uses an “ordinary case” analysis. Of importance in Keelan is that the Court noted that in cases involving sex crimes against minors there is always a substantial risk that physical force will be used, therefore supporting a finding that any crime involving sex abuse of a minor is likely to be a crime of violence under 18 U.S.C. § 16(b).

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.