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Majority: "Donald Efren Franco-Casasola’s petition for panel rehearing is DENIED. We withdraw our prior opinion of March 6, 2014, and substitute the following. The Board of Immigration Appeals (“BIA”) determined that Franco-Casasola was ineligible for cancellation of removal due to his conviction of an aggravated felony. In our prior panel opinion, we concluded the BIA did not err in determining that his statute of conviction was divisible. We applied the modified categorical approach to decide he had been convicted of an aggravated felony. In his petition for rehearing, Franco-Casasola contends that under the recent Supreme Court authority, it was error to conclude that his statute of conviction was divisible. See Descamps v. United States, 133 S. Ct. 2276 (2013). We disagree. Accordingly, we DENY the petition for review. We substitute the following opinion to explain the Court’s holding in Descamps. ... We have gone one step further than the Supreme Court has had to so far but have not strayed from the path it has marked."
Dissent: "The majority concedes that it has gone “one step further” than the Supreme Court. That “one step” is a giant leap. The leap from the statutory text of section 554(a) (smuggling goods from the United States) under the guise of “any law” to four other sections (mentioned in the indictment but not charged) regarding licensing to export “defense articles,” and then to a previously unmentioned section listing “firearms” as possible “defense articles” under two specific sections not including section 554, is a feat squarely forbidden by Descamps. The majority correctly notes the Descamps admonition that a court may not look to facts underlying the conviction to determine if Franco-Casasola’s conduct conforms to a generic offense. Nevertheless, “[i]nstead of reviewing documents like an indictment or plea colloquy only to determine which statutory phrase was the basis for the conviction, [the majority] look[ed] to those materials to discover what the defendant actually did.” Descamps, 133 S.Ct. at 2288 (internal marks omitted). ... it is improper to consider the indictment or other documents – even if consideration of the indictment would provide evidence of a necessary element of the generic offense. Accordingly, I would grant Franco-Casasola’s petition for review and reverse the decision of the BIA. Therefore, I respectfully dissent."
- Franco-Casasola v. Holder, Oct. 23, 2014.