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BIA Holds That Removability For An Aggravated Felony Crime OF Violence Was Not Established Where Utah Code §76-10-508.1 Is Not Divisible In Regards To The Mens Rea Required By 18 U.S.C. §16(a), Per The U.S Supreme Court Decisions in Mathis And Descamps. Matter Of Chairez, 26 I&N Dec. 349 (BIA 2014) and Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) Clarified.

November 7, 2016 Philip Levin

On September 28, 2016, The Board of Immigration Appeals (BIA or Board), on remand from the Attorney General, clarified that the understanding of statutory divisibility “embodied” in Mathis v. U.S. 136 S.Ct. 2243(2016) and Descamps v. U.S. 133 S.Ct. 2276 (2013) applies to immigration proceedings nationwide to the same extent that it applies in criminal sentencing cases. The BIA further stated that Immigration Judges (IJs) and the Board “must follow applicable circuit law to the fullest extent possible when seeking to determine what Descamps  and Mathis require”.  As a result, the BIA’s prior precedent decisions in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) and Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) were superceded to the extent they are inconsistent with Mathis and Descamps.

Respondent had been convicted of discharge of a firearm under Utah Code §76-10-508.1, pleading guilty to an amended information that charged him by quoting the section’s full statutory text. His term of imprisonment was not to exceed 5 years. The IJ found him removable and ineligible for most relief as a crime of violence aggravated felon and as one convicted of a firearms offense. In reviewing the IJ’s ruling, the BIA employed the “categorical approach”, focusing on the “elements” of the Utah law as opposed to the facts underlying the conviction.

Initially, The Board found the Utah code section categorically overbroad in terms of the “crime of violence” (COV) definition found at U.S.C. §16(a) because the state law has as elements the intentional use of violent physical force against the person or property of another i.e., the discharge of a firearm. However, the BIA held that 26-10-508.1 is not a categorical COV because it allows for a conviction whether the firearm is discharged intentionally, knowingly or recklessly. As a result, the aggravated felony charge could not be sustained unless the statute is “divisible”, in which case the “modified categorical approach” is used. Citing to Descamps, the Board explained that a criminal law is only divisible if it I) lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of elements, more than 1 combination of which could support a conviction and 2) at cast one (but not all) of the listed offenses or combinations of elements is a categorical match to the “relevant generic standard”.

Noting that Mathis reaffirmed Descamps while clarifying that disjunctive statutory language does not render a criminal statue divisible under each statutory alternative defines an independent “element” of the offense (not a mere “brute fact” describing various means  of commission), the BIA held that respondent’s removability as a COV aggravated felon had not be sufficiently proved. The decision concludes by reiterating respondent’s removability for the firearms offense per INA§237(a)(2)(c), but also finding him eligible to apply for cancellation of removal (or any other relief now available) for having “carried his burden of proving the absence of any disqualifying aggravated felony conviction”.  The Board therefore sustained the appeal in part and reminded the record to the IJ for further proceedings. Matter of Chairez, 26 I&N Dec. 819 (BIA 2016).

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.