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Amicus Invitation No. 21-17-11
"ISSUE PRESENTED: In Hernandez v. Whitaker, 914 F.3d 430 (6th Cir. 2019), the United States Court of Appeals for the Sixth Circuit concluded that section 750.82 of the Michigan Compiled Laws is not divisible and that the minimum conduct at issue therein – i.e., the intent to place a victim in reasonable fear or apprehension of an immediate battery – could not satisfy the definition of a crime involving moral turpitude. See Hernandez v. Whitaker, 914 F.3d at 434 (citing Hanna v. Holder, 740 F.3d 379 (6th Cir. 2014) for proposition that section 750.82 “is not categorically a CIMT”). Considering that the respondent’s statute of conviction (section 750.81a(1) of the Michigan Compiled Laws) shares the same mens rea requirement as the statute addressed in Hernandez v. Whitaker, i.e., the intent to injure or to place a victim in reasonable fear or apprehension of an immediate battery, address whether the respondent’s conviction is a crime involving moral turpitude, considering and analyzing the effect of our decisions in Matter of Wu, 27 I&N Dec. 8 (BIA 2017) and Matter of J-G-P-, 27 I&N Dec. 642 (BIA 2019) and the Sixth Circuit’s decisions in Hernandez v. Whitaker, supra, and Hanna v. Holder, supra. Additionally, address the application of the “realistic probability” inquiry to the question of the respondent’s removability under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, in light of Matter of Salad, 27 I&N Dec. 733 (BIA 2020) and other binding decisions of the Board and/or the Sixth Circuit."