Unpub. BIA "Realistic Probability" Victory (Aug. 1, 2022)

Matter of X-, Aug. 1, 2022 (unpub.)

"The respondent, a native and citizen of China, entered the United States in 2003, was granted asylum in 2005, and adjusted his status to that of a lawful permanent resident in 2006. In 2012, he was convicted under section 18.2-94 of the Annotated Code of Virginia, for possession of burglarious tools (See lJ at 2). In 2013 he was placed in removal proceedings and charged as removable for his conviction for a crime involving moral turpitude (''CIMT') under section 2 l 2(a)(2)(A)(0(1) of the Immigration and Nationality Act, 8 U.S.C. § l 182(a)(2)(A)(i)(I). On October4, 2019, the Immigration Judge denied the respondent's motion to terminate. After the respondent filed another motion to terminate based on changed case law, specifically in light of Matthews v. Barr, 927 F.3d 606 (2d Cir. 2019), the Immigration Judge issued a new decision on February 21 , 2020, and granted the respondent's motion to terminate without prejudice. She certified that decision to the Board and we consider the legal issues de novo. 8 C.F.R. § 1003.l(d)(3)(ii). The determinative legal issue in this case is whether, in order to establish that he is not removable, the respondent must show that someone was actually prosecuted under this facially overbroad State statute for the type of conduct which is not an immigration crime under the Federal definition. ... The Immigration Judge, in her analysis, relied on Matthews, 927 F.3d at 618, which extended the Second Circuit's prior holding in Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018) ('"The realistic probability test is obviated by the wording of the state statute, which on its face extends to conduct beyond the definition of the corresponding federal offense."). We acknowledge that the Board had previously interpreted Hylton as a limited holding in Navarro Guadarrama, 27 l&N Dec. at 565 n.5 ("We consider the decision in Hylton to be limited to the specific issue addressed whether the alien was convicted of a drug-trafficking aggravated felony.'). But, as the Immigration Judge correctly recognized, the Second Circuit has extended its case law to depart from the Board's requirement of prosecution to satisfy the realistic probability test. See, e.g., Jack, 966 F.3d at 98; Williams, 960 F.3d at 78. Thus, binding Second Circuit precedent controls here and was appropriately applied by the Immigration Judge. Accordingly, the decision of the lmmigration Judge will be affirmed."

[Hats off to Alan Lee!]