Unpub. BIA Cancellation, Agg. Fel., Categorical Approach Victory in Michigan

Russell Abrutyn writes: "[Here are] two BIA decisions for a client of ours that may be of interest to your readers. The first decision is the BIA's decision reopening the Respondent's removal proceedings and the second is the BIA's decision affirming a grant of relief.

The Respondent was ordered removed based upon a finding that his conviction for transporting more than 4 kilograms of cocaine under California Health and Safety Code 11352(a) was an aggravated felony. After his removal, he unlawfully reentered the U.S. and lived here for more than ten years before ICE caught him and sought to reinstate the removal order. The BIA granted a motion to reopen, finding that his conviction was not categorically an aggravated felony. Following the reopening of his removal proceedings, the government dismissed an illegal reentry criminal charge.

On remand, an Immigration Judge granted him cancellation of removal as a permanent resident. ICE appealed. The BIA dismissed ICE's appeal, finding that under the modified categorical approach, ICE did not prove that the Respondent was convicted of an aggravated felony and affirming the discretionary grant of cancellation of removal. Although the California court imposed a sentence enhancement based on the quantity of cocaine, this did not support a conclusion that the offense involved trafficking as opposed to personal use because that inference would be based on the Respondent's purported conduct and not the elements of the offense. After 20 months in custody, the Respondent was released today. The Respondent was represented by Marshal E. Hyman and Russell Abrutyn."  [Hats off to Russell and Marshall!]