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ILRC Update: The Categorical Approach in the Ninth Circuit

September 2012 Update : The Categorical Approach in the Ninth Circuit and United States v. Aguila-Montes de Oca (9th Cir. 2011) (en banc), Young v. Holder (9th Cir. Sept. 17, 2012) (en banc)

Practice Advisory: Matter of Davey & the Categorical Approach

"This practice advisory discusses the Board of Immigration Appeals (BIA) decision in Matter of Davey, 26 I&N Dec. 37 (BIA 2012) and its holding that the categorical approach does not apply to the “possession of 30 grams of marijuana” exception to deportability found in 8 U.S.C. §...

CA1 on CIMT, Modified Categorical Approach: Patel v. Holder

"In 2003, petitioner Nupur Patel pled guilty to conspiracy-to-commit-larceny charges stemming from a scheme in which he stole from the dorm rooms of his college classmates. As a result, an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) found that Patel, at the time a lawful permanent...

Unpub. BIA Categorical Approach Victory: N.Y. Child Welfare Statute

"DHS must prove that 260.10(1) of the New York Penal Law categorically falls within the ambit of a crime of child abuse, neglect or abandonment. Although our standard in Soram is broadly interpreted, we nonetheless agree with the Immigration Judge that N.Y. Penal Law § 260.10(1) is facially...

Practice Advisory: Descamps v. U.S. and the Modified Categorical Approach

"This practice advisory covers: (1) the holding in Descamps; (2) why this criminal case is equally applicable to the categorical approach used in immigration proceedings; and (3) the decision’s potential implications for specific removal grounds." - By Dan Kesselbrenner, Isaac Wheeler...

CA3 on Categorical Approach: Bautista v. Attorney General

"We will grant the petition because the New York attempted arson conviction is not an aggravated felony in respect to collateral immigration consequences under the INA. Applying the categorical approach, as we must, the New York statute under which Bautista was convicted does not match the elements...

The Immigration Law Nerd Channel: Categorical Analysis of Immigration Consequences

A 6-minute intro to the strict categorical analysis that determines whether a state (or other) conviction will have federal immigration consequences under United States immigration law. By Maureen A. Sweeney , University of Maryland Carey School of Law, Immigration Clinic, July 21, 2014 .

BIA on Realistic Probability Test: Matter of Ferreira

Official Headnote: Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense...

CA5 on Descamps: Franco-Casasola v. Holder

Majority : "Donald Efren Franco-Casasola’s petition for panel rehearing is DENIED. We withdraw our prior opinion of March 6, 2014, and substitute the following. The Board of Immigration Appeals (“BIA”) determined that Franco-Casasola was ineligible for cancellation of removal due...

CA5 on CIMT, 'de minimus touching' - Cisneros-Guerrerro v. Holder

"Proceeding pro se, Salvador Cisneros-Guerrerro, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals finding that his prior offense of public lewdness, under Texas Penal Code § 21.07, was categorically a crime involving moral turpitude and...

CA2 on Continuance, Categorical Approach: Flores v. Holder

"We hold that the agency (1) abused its discretion in denying the motion to continue because it failed to apply the correct legal standard, (2) erred in its application of the modified categorical approach to determine whether petitionerʹs convictions for first‐degree sexual abuse under New York...

CA9 on Categorical Approach: Camacho Garcia v. Lynch

"An Immigration Judge (“IJ”) incorrectly advised George Camacho Garcia that his prior conviction was for an aggravated felony, and that he was therefore ineligible for relief from removal. Hearing that advice, Garcia waived his appeal to the Board of Immigration Appeals (“BIA”...

CA9 on Cal. Theft Offense, Agg. Fel. - Lopez-Valencia v. Lynch

"Adhering to the methodology established by Descamps and our follow-on opinion in Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014), we conclude that a conviction under California’s theft statute is not an aggravated felony because it is not a “theft offense” as defined by 8 U.S...

CA9 on Categorical Approach, CAT: Quijada-Aguilar v. Lynch

Court Staff Summary : "The panel granted Walter Quijada-Aguilar’s petition for review of the Board of Immigration Appeals’ denial of his applications for withholding of removal under the Immigration and Nationality Act and the Convention Against Torture (CAT), as well as deferral...

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...

CA1 on Categorical Approach: Peralta Sauceda v. Lynch

Peralta Sauceda v. Lynch, Apr. 22, 2016 - "Jose Ricardo Peralta Sauceda, who entered the United States illegally in 1993 from Honduras, conceded in 2007 that he was removable but requested cancellation of removal. He now petitions for review of the Board of Immigration Appeals' ("BIA"...

CA4 on Categorical Approach, Theft, Embezzlement: Mena v. Lynch

Mena v. Lynch, Apr. 27, 2016 - "Common sense suggests that knowingly receiving either stolen or embezzled property – i.e., the offense set forth in the second paragraph of § 659 - is a form of theft. See, e.g., United States v. Johnson, 612 F.2d 843, 846 (4th Cir. 1979) (noting that the...

BIA on Categorical Approach, Failure to Appear, Circumstance-Specific Approach - Matter of Garza-Olivares

Matter of Garza-Olivares, 26 I&N Dec. 736 (BIA 2016) - In assessing whether an offense qualifies as an aggravated felony under section 101(a)(43)(T) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(T) (2012), the categorical approach applies to decide if the offense relates to...

CA9 on Arizona Drug Laws, Categorical Approach: Vera-Valdevinos v. Lynch (unpub.)

BC Law Students Win Momentous Ninth Circuit Victory - "In what one observer is calling “a watershed decision,” the Ninth Circuit Court of Appeals on May 11 granted a petition briefed and argued by BC Law students Jovalin Dedaj ’16 and Cristina Manzano ’16 (pictured). They...

Supreme Court on Categorical Approach: Mathis v. U.S.

Mathis v. U.S., June 23, 2016 - "[W]hether for good or for ill, the elements-based approach remains the law. And we will not introduce inconsistency and arbitrariness into our ACCA decisions by here declining to follow its requirements. Everything this Court has ever said about ACCA runs counter...

CA4 on Jurisdiction, Categorical Approach: Castendet-Lewis v. Sessions

Castendet-Lewis v. Sessions, Apr. 25, 2017 - "We first assess — and deny — the Attorney General’s renewed motion to dismiss. We then proceed to the merits of Castendet’s petition for review, which contends that his burglary offense is not an aggravated felony. Because we...

BIA Amicus Brief Invitation: Modified Categorical Approach & CIMTs

Amicus Invitation No. 17-06-12 AMICUS INVITATION (MODIFIED CATEGORICAL APPROACH & CIMTS) DUE [JULY 12, 2017] JUNE 12, 2017 The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue(s): ISSUE(S) PRESENTED: (1) Is...

CA2 on AggFel, Categorical Approach: Harbin v. Sessions

Harbin v. Sessions, June 21, 2017 - "We hold that N.Y. Penal Law § 220.31 defines a single crime and is therefore an “indivisible” statute. Accordingly, the agency should have applied the so‐called “categorical approach,” which looks to the statutory definition of the...

CA11 on Modified Categorical Approach: Gordon v. Atty. Gen.

Gordon v. Atty. Gen. - "Petitioner Lannie Gordon (“Gordon”) petitions for review of the Board of Immigration Appeals’ (“Board” or “BIA”) order upholding the Immigration Judge’s (“IJ”) finding that his conviction for violating Florida Statute...

BIA on Theft: Matter of Delgado, 27 I&N Dec. 100 (BIA 2017)

Matter of Delgado, 27 I&N Dec. 100 (BIA 2017) - Robbery under section 211 of the California Penal Code, which includes the element of asportation of property, is categorically an aggravated felony theft offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101...