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Immigration Law

CA8 on Burglary, Aggravated Felony - Xiong v. Lynch

Xiong v. Lynch, Sept. 8, 2016- "In its motion to remand, the government argues that the Board should consider whether a second-degree burglary in Minnesota constitutes a generic “burglary” within the meaning of § 1101(a)(43)(G). We conclude that the suggestion of a remand is well taken. ... 

As the appeal comes to us, Xiong argues that we must consider the constitutionality of the definition of “crime of violence” in 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b). Although the government argued before the immigration judge and the Board that Xiong’s burglary conviction also qualified as an aggravated felony under § 1101(a)(43)(G), we may not consider whether to affirm the denial of relief on that ground, because the Board did not decide the issue. See SEC v. Chenery Corp., 318 U.S. 80, 94 (1943). Rather than allowing the Board’s treatment of the case to force a decision on a constitutional question that might be unnecessary, we conclude that a remand is warranted for the Board to consider in the first instance whether Xiong’s burglary conviction is an aggravated felony under § 1101(a)(43)(G)."