BIA FURTHER INTERPRETS Moncrieffe v. Holder, CITES Matter of Chairez IN HOLDING THAT WHERE A STATE CRIMINAL STATUTE IS BROADER THAN THE ANALAGOUS FEDERAL GENERIC DEFINITION, A RESPONDENT MUST STILL SHOW A REALISTIC PROBABILITY THAT THE STATE LAW WOULD BE APPLIED TO CONDUCT FALLING OUTSIDE THE GENERIC CRIME.

On September 22, 2014, the Board of Immigration Appeals (BIA), in parsing a Connecticut drug conviction’s effect on removability, noted that at the relevant time the state law included two drugs not listed on the Federal controlled substance schedule, thus—as was the case in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013)—criminalizing conduct that was not necessarily an offense under federal law. Interpreting Moncrieffe to hold that where the state definition of a controlled substance is broader than the federal definition, thus requiring the “categorical approach” to look not at the facts of the respondent’s criminal case but at whether the Connecticut law fits within the generic Federal definition of the corresponding removal ground, the BIA cited and followed its recent opinion in Matter of Chairez, 26 I. & N. Dec. 349 (BIA 2014) to hold that in such circumstances to overcome removability, the respondent must show that there is a realistic probability, as opposed to a theoretical possibility, that the state would prosecute conduct falling outside the generic federal crime. Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014).