On July 24, 2014, the Board of Immigration Appeals (BIA), in a lengthy decision, cited the recent U.S. Supreme Court case of Moncrieffe v. Holder, 133 S.Ct. 2276 (2013) for the proposition that, in employing the categorical approach to determine whether a conviction qualifies as a crime of violence aggravated felony or firearms offense, the Immigration Court must focus on the minimum conduct that has a realistic probability of being prosecuted. Because in this case the issue involved removability, on which DHS bears the burden of proof and DHS had not established the respondent’s removability as an aggravated felon, the BIA found the Department had not met its burden where it did not show the criminal statute was divisible, following Descamps v. U.S., 133. S.Ct. 2276 (2013) and withdrawing its own precedent, Matter of Lanferman, 25 I. & N. Dec. 721 (BIA 2012). The BIA also held that the respondent could not show the statute was overbroad as there was no evidence that he or anyone else was successfully prosecuted for discharging an antique firearm, clarifying Matter of Mendez-Orellana, 25 I. & N. Dec. 254 (BIA 2010). Matter of Chairez- Castrejon, 26 I. & N. Dec. 349 (BIA 2014).
Learn more about us and our immigration services.
