CA3 on Modified Categorical Approach - Hillocks v. A.G.

Hillocks v. A.G.

"Petitioner Dexter Anthony Hillocks is a lawful permanent resident who was convicted of the Pennsylvania state crime of using a communication facility — i.e., a phone — to facilitate a felony. The question before us is whether that crime constitutes either an “aggravated felony” or a “conviction relating to a controlled substance” under federal immigration laws. Either would make him removable. ... The Board of Immigration Appeals concluded that the modified categorical approach applied to Hillocks’s conviction here. Applying that approach, the Board looked to Hillocks’s plea colloquy and found that Hillocks used a phone to facilitate the sale of heroin. The Board found that his conviction was therefore both an aggravated felony and related to a controlled substance, and accordingly ordered Hillocks removed. On appeal, Hillocks argues that the Board misapplied the approach. He asserts that the various felonies that a person could facilitate with a phone are “means” by which the crime could be committed, not alternative elements, and that, under this analysis, his conviction does not make him removable. As we explain, we agree that the Board incorrectly applied the modified categorical approach. We will vacate the order of removal and remand for further proceedings."

[Hats off to appointed pro bono counsel, Natalie R. Salazar, James C. Martin and M. Patrick Yingling!]