Normally, I would begin with the BIA decisions and put the bonus case at the end, but this one is too important to miss. I blogged before about how the U.S. Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), could be monumental in destroying the ordinary case analysis used by the Board in cases involving crimes of violence under 18 U.S.C. § 16(b). This case from the Ninth Circuit has proven me correct:
Dimaya v. Lynch, 2015 WL 6123546 (9th Cir. Oct. 19, 2015); In the first Federal Circuit Court published opinion of its kind, the Ninth Circuit held that the U.S. Supreme Court’s reasoning in Johnson v. United States, 135 S. Ct. 2551 (2015), is applicable in immigration cases. In Johnson (a federal criminal sentencing case) the U.S. Supreme Court found the residual clause of the ACCA and the corresponding ordinary case analysis unconstitutional and void for vagueness. The Ninth Circuit in Dimaya found that the problematic language and analysis in the ACCA is substantially the same as 18 U.S.C. § 16(b). Therefore, the ordinary case analysis and 18 U.S.C. § 16(b), suffer from the same constitutional defects brought to light in Johnson and are therefore void for vagueness. This means that we finally have a case to support the argument that the Immigration Courts cannot use 18 U.S.C. § 16(b) to sustain a crime of violence charge under INA § 101(a)(43)(F).
Recent Published BIA Decisions:
Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015); The Board held that when a respondent is granted voluntary return or departure by an immigration officer, their continuous physical presence would not automatically be broken for the purposes of INA § 240A(d)(2). In order for the continuous physical presence to end, there must be reliable evidence that the respondent had a right to appear before an Immigration Judge and was properly advised of and waived that right before accepting the voluntary return. This decision applies in cancellation of removal cases pursuant to INA § 240A(b) where a respondent has departed the United States during the ten-year period immediately preceding the Notice to Appear, and when they returned, they were caught by Immigration officers and allowed to voluntarily depart or return to their country.
Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015); In a companion case to Matter of Castrejon-Colino, the Board held that there is no distinction between encounters that occurred at or near the border and encounters that happened elsewhere in the United States.
Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015); The Board expanded upon its mental health line of cases to clarify that neither the respondent nor the Department bears the burden to establish whether a respondent is mentally competent to proceed. Rather, if the Immigration Court identifies indicia of incompetency, the Court should make a determination by a preponderance of the evidence if the respondent is component to proceed. This determination if reviewable by the Board using the clearly erroneous standard.
Matter of Chairez and Sama, 26 I&N Dec. 686 (A.G. 2015); The Attorney General referred these two cases to herself to determine the following:
What is the proper approach for determining “divisibility” within the meaning of Descamps v. United States, 133 S. Ct. 2276 (2013)? In particular, does Descamps require that a criminal statute be treated as “divisible” for purposes of the modified categorical approach only if, under applicable law, jurors must be unanimous as to the version of the offense committed?
The AG’s decision to tackle this issue is generally not seen as good news by those in AILA who would know. This may be the AG’s attempt to construe divisibility more broadly than the Board did in Chairez, thus making more crimes divisible and subject to the modified categorical approach. This would potentially make it easier for the Department to prove removability and more difficult for respondents to prove eligibility for relief.
John Gihon is a Florida Bar Board Certified expert in Immigration and Nationality Law and a Crimmigration Consultant.