CA11 Remand: Kemokai v. Atty. Gen.

Kemokai v. Atty. Gen.

"The Board of Immigration Appeals ruled that Mucktaru Kemokai is removable as an aggravated felon and denied his requests for asylum and withholding of removal. Mr. Kemokai petitions for review, arguing that his Massachusetts conviction for armed robbery does not constitute a “theft offense” within the meaning of 8 U.S.C. § 1101(a)(43)(G), and therefore is not an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). We reject the argument and deny the petition in that respect. But we agree with the parties that a remand to the BIA is nevertheless required. The Attorney General has issued an intervening decision which might impact Mr. Kemokai’s request for withholding of removal, and the BIA should have the opportunity to consider the effect of that decision. We therefore grant the petition in part. ... Mr. Kemokai was sentenced to less than five years in prison. His aggravated felony conviction, therefore, does not per se constitute a particularly serious crime with respect to withholding of removal. The parties agree that we should remand to the BIA to reconsider Mr. Kemokai’s request for withholding of removal. In an intervening decision, the Attorney General has concluded that mental health evidence can be considered in determining whether an offense constitutes a particularly serious crime making the noncitizen a danger. See Matter of B-Z-R-, 28 I. & N. Dec. 563, 567 (A.G. 2022). Because Mr. Kemokai presented evidence of mental health problems, and this evidence was not considered by either the immigration judge or the BIA, we remand for reconsideration in light of Matter of B-Z-R-. V Mr. Kemokai’s petition is denied in part and granted in part, and the matter is remanded to the BIA for further proceedings consistent with our opinion. PETITION DENIED IN PART, GRANTED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS."

[Hats off to Prof. Arléne Amarante!]