On May 5, 2016, the Board of Immigration Appeals (BIA or Board) sustained a Department of Homeland Security (DHS) appeal in holding that a respondent’s conviction of a federal failure to appear (FTA) offense is an aggravated felony under INA §101(a)(43)(T).
Before the Immigration Judge (IJ), the appellant had admitted the factual allegation of the conviction but denied removability. The IJ found the crime was not an aggravated felony and terminated proceedings, concluding the FTA statute is not a categorical match to §101(a)(43)(T), relying on Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. 2008).
DHS countered that the limiting language of §101(a)(43)(T) refers to the particular circumstances of an offender’s generic FTA crime on a particular occasion as opposed to the elements of the offense, citing to Nijhawan v. Holder, 557 U.S. 29 (2009). Splitting the difference but accepting the DHS’ conclusion, the Board held that the categorical approach applies to the first 2 components of §101(a)(43)(T) but that Nijhawan’s circumstance-specific approach applies to the last 3. This was so, the BIA stated, because the first 2 components, like the “fraud or deceit” component of INA §101(a)(43)(M) referenced in Nijhawan, refer to common elements of a generic FTA crime; however, the last 3 are limiting components referring to specific aggravating offense characteristics and applying a categorical approach to them would contravene Congressional intent by drastically circumscribing the reach of §101(a)(43)(T). Thus, distinguishing Renteria-Morales, the Board vacated the IJ’s decision, reinstated removal proceedings and remanded the record for the IJ to apply the circumstance-specific approach to the last 3 components and to allow the respondent to apply for any possible relief. Matter of Garza-Olivares, 26 I&N Dec. 736 (BIA 2016).
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