BIA PARTIALLY VACATES Matter of Chairez-Castrejon, HOLDING THAT—AS TO THE DIVISIBILITY OF AGGRAVATED FELONY STATUTES—IMMIGRATION JUDGES SHOULD FOLLOW THE LAW OF THE CIRCUIT IN WHOSE JURISDICTION THEY SIT, APPLYING Chairez-Castrejon ONLY IF THERE IS NO CONTRARY CONTROLLING CIRCUIT AUTHORITY.
On February 11, 2015, the Board of Immigration Appeals (BIA) revisited its prior precedent decision in Matter of Chairez-Castrejon, 26 I. & N. Dec. 349 (BIA 2014) on a DHS motion for partial reconsideration. Before the Immigration Judge (IJ) the respondent had been found removable for conviction of a crime of violence aggravated felony as well as for a firearms offense but, following Descamps v. U.S., 133 S.Ct. 2276 (2013), the BIA had partially sustained the respondent’s appeal, holding DHS had not carried its burden on the aggravated felony charge. (Chairez-Castrejon found that a Utah discharge of firearm conviction encompassed “intentional”, “knowing”, and “reckless” conduct and that these were alternative “means” not “elements”, so that the modified categorical approach was inapplicable.) The DHS motion requested reconsideration of this part of the Chairez-Castrejon opinion, disputing the correctness of that decision’s approach to the divisibility of aggravated felony statutes under Descamps. DHS argued that Descamps permits a modified categorical inquiry whenever the statutory language lists alternative phrases, some of which define conduct triggering immigration consequences and some of which do not. Agreeing that its application of the modified categorical approach does not receive deference from the courts of appeal, the Board held that it must instead defer to the respective circuit courts’ interpretation of divisibility under Descamps. In the instant case, where the Tenth Circuit has established a broader approach, the BIA found that that court’s analysis must be applied and thus held the Utah statute is divisible into 3 separate offenses (intent, knowledge and recklessness), concluding that intentional or knowing commission of the crime would be an aggravated felony crime of violence. The respondent was found removable on that ground, that part of Chairez-Castrejon vacated, and the matter once again remanded to the IJ. Matter of Chairez-Castrejon, 26 I. & N. Dec. 478 (BIA 2015).
