Immigration Law

CA2 on AggFel, Categorical Approach: Harbin v. Sessions

Harbin v. Sessions, June 21, 2017 - "We hold that N.Y. Penal Law § 220.31 defines a single crime and is therefore an “indivisible” statute. Accordingly, the agency should have applied the so‐called “categorical approach,” which looks to the statutory definition of the offense of conviction, rather than the particulars of an individual’s behavior, to determine whether a prior conviction constitutes an aggravated felony. See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Now applying the categorical approach, we conclude that Harbin’s conviction under N.Y. Penal Law § 220.31 did not constitute a commission of an aggravated felony. Harbin’s § 220.31 conviction therefore did not bar him from seeking cancellation of removal and asylum. ... Accordingly, the petition for review is GRANTED in part. The agency’s rulings as to Harbin’s eligibility for cancellation of removal and asylum are VACATED, and this matter is REMANDED to the BIA for reconsideration of those issues in a manner consistent with this opinion."

[Hats off to: DOROTHY J. SPENNER, Sidley Austin LLP (Kevin Kim, Sonia Marquez, Sidley Austin LLP; Seymour W. James, Jr., Attorney‐in‐Chief, Jojo Annobil, Attorney‐in‐Charge, Immigration Law Unit, Maria Navarro, Acting Attorney‐in‐Charge, Immigration Law Unit, Ward J. Oliver, Supervising Attorney, Immigration Law Unit, Amy Meselson, Of Counsel, The Legal Aid Society, on the brief), New York, N.Y.!]