Barr Nukes the Categorical Approach: Matter of Reyes, 28 I&N Dec. 52 (A.G. 2020)

Matter of Reyes, 28 I&N Dec. 52 (A.G. 2020)

(1) If all of the means of committing a crime, based on the elements of the statute of conviction, amount to one or more of the offenses listed in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43), then an alien who has been convicted of that crime has necessarily been convicted of an aggravated felony for purposes of the INA.

(2) The respondent’s conviction for grand larceny in the second degree under New York Penal Law § 155.40(1) qualifies as a conviction for an aggravated felony for purposes of the INA. DHS charged that the respondent had been convicted of either aggravated-felony theft or aggravated-felony fraud, as defined in section 101(a)(43)(G) and (M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(G) and (M)(i). Larceny by acquiring lost property constitutes aggravated-felony theft, and the parties do not dispute that the other means of violating the New York statute correspond to either aggravated-felony theft or aggravated-felony fraud.

"... [T]he categorical approach has proven to be particularly disruptive to the immigration system ... A test that produces outcomes that seem random or disconnected from reality can undermine the rule of law. ... I believe that the Board’s wooden application of it in this context conflicts with common sense and was not required by the governing precedent. ... I conclude that the respondent’s 2014 conviction for grand larceny in the second degree under New York Penal Law § 155.40(1) is necessarily one for an aggravated felony under section 101(a)(43) of the INA. Because the respondent was convicted of an aggravated felony, the Board erred in affirming the immigration judge’s order terminating the removal proceeding and in dismissing DHS’s appeal. I vacate the decision below and remand for further proceedings consistent with this opinion."