In re Lanferman
| Decision Date | 09 March 2012 |
| Citation | 25 I&N Dec. 721 |
| Parties | Matter of Roderick B. LANFERMAN, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
Interim Decision #3744
A criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief.
FOR RESPONDENT: Adam Paskoff, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Steven J. Connelly, Assistant Chief Counsel
BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.
PAULEY, Board Member:
This case was last before us on June 22, 2006, when we dismissed the respondent's appeal from the Immigration Judge's decision of March 18,2005, ordering him removed from the United States under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2000), as an alien convicted of a firearms offense. The factual basis for the finding of removability was the respondent's 1996 conviction for menacing in the second degree in violation of section 120.14 of the New York Penal Law. On August 5,2009, the United States Court of Appeals for the Second Circuit remanded the case for us "to decide the initial issue of whether Section 120.14 of the New York Penal Law is divisible under the modified categorical approach." Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84,86 (2d Cir. 2009). Upon consideration of this issue, we again conclude that the respondent is removable as charged and will dismiss his appeal.
The respondent is a native and citizen of Guyana who was admitted to the United States as a lawful permanent resident on December 24, 1990. On August 8, 1996, he was convicted in the Criminal Court of the City of New York, County of Bronx, New York, of menacing in the second degreein violation of section 120.14 of the New York Penal Law. Based on this conviction, the respondent was charged under section 237(a)(2)(C) of the Act, and the Immigration Judge found him removable in a decision dated May 29, 2003. The respondent applied for cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2000), which was denied by the Immigration Judge in the exercise of his discretion. Following the respondent's appeal, we remanded the record in a decision dated September 7, 2004, which resulted in the Immigration Judge's decision of March 18, 2005. In our June 22, 2006, decision, we dismissed the respondent's appeal, finding that he was removable and that his application for cancellation of removal was properly denied as a matter of discretion.
The Second Circuit has identified three analytical approaches to potentially divisible statutes. Lanferman v. Bd. of Immigration Appeals, 576 F.3d at 90-92 (). Under the first approach, divisibility would be permitted "where the alternative means of committing a violation are enumerated as discrete alternatives, either by use of disjunctives or subsections." Id. at 90. Under the second approach, divisibility would be permitted "where the statute of conviction is phrased in the disjunctive or divided into subsections, or where the immigration statute invites inquiry into the facts of the underlying conviction at issue." Id. at 91-92 (citing Singh v. Ashcroft, 383 F.3d 144, 148 (3d Cir. 2004)). Under the third approach, divisibility would be permitted in "all statutes of conviction . . . regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct." Id. at 90 (quoting Dulal-Whiteway v. U.S. Dep't of Homeland Sec., 501 F.3d at 128) (internal quotation marks omitted).
The issue before us, under the terms of the remand, is which of these approaches is most suitable for application in the immigration context. For the following reasons, we adopt the third approach.
The question of a criminal statute's divisibility arises in the application of the categorical approach to determine whether an offense prohibited by the statute in question comes within a specific ground of removability. See Taylor v. United States, 495 U.S. 575 (1990); see also Shepard v. United States, 544 U.S. 13 (2005). In its original form, the categorical approach limited theanalysis of the alien's removability to the criminal statute of conviction, with no consideration of the underlying conduct on which the conviction may have been based. See Taylor v. United States, 495 U.S. at 600; see also Matter of Babaisakov, 24 I&N Dec. 306, 310-11 (BIA 2007). However, the Court subsequently made clear in Shepard that where a statute was effectively divisible, documents that are part of the record of conviction, such as the charging instrument, jury instructions, or, in the case of a plea, the plea transcript, could be used to demonstrate that the defendant was convicted of a particular type of violation. This inquiry has come to be known as the modified categorical approach.
The principal purpose served by the categorical approach is to limit the inquiry to what crime the offender was necessarily convicted of(as opposed to the offender's underlying conduct) and, thus, to avoid ad hoc mini-trials on whether an offender's conduct was more or less culpable than what his actual conviction required. See Taylor v. United States, 495 U.S. at 600-02; Garcia v. Holder, 638 F.3d 511, 517 (6th Cir. 2011); United States v. Piccolo, 441 F.3d 1084, 1087 (9th Cir. 2006). Originally, the categorical approach was deemed to involve a purely abstract inquiry into the categorical nature of the elements of a criminal statute. But recently the Supreme Court has engrafted a threshold inquiry that requires an initial determination whether the breadth of conduct covered by a criminal statute in its actual application is such that there is a "realistic probability" that the statute would be successfully employed to prosecute the conduct at issue. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (); see also James v. United States, 550 U.S. 192, 208 (2007); Matter of Silva-Trevino, 24 I&N Dec. 687, 697-98 (A.G. 2008) ().
The circuit courts have not uniformly applied the modified categorical approach in the immigration context. See, e.g., Conteh v. Gonzales, 461 F.3d 45, 54-57 (1st Cir. 2006). However, they all agree on one aspect of the modified categorical approach, namely, that its functional purpose is to determine when documents in an alien's record of conviction may be considered to ascertain if the crime at issue falls within the class of offenses defined by the applicable provision of inadmissibility under section 212 of the Act, 8 U.S.C. § 1182 (2006), or removability under section 237.1
The divisibility calculus, which is implicated by the modified categorical approach, requires that we carefully examine the State or Federal law at issue to understand how a particular offense is prosecuted—that is, what elements must be shown beyond a reasonable doubt (including sentencing factors in some instances). We view a criminal statute as divisible only if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief.2 See, e.g., Matter of Vargas, 23 I&N Dec. 651, 654 (BIA 2004).
Sometimes this simply requires the adjudicator to look at the alien's criminal record to determine whether his crime "matches" the elements that define the offense of removal, such as burglary in the aggravated felony definition. At other times, the removal provision does not refer to a specific offense like burglary with a settled generic definition but instead creates an imprecise standard that must be compared to the elements of a State or Federal offense. For example, section 101(a)(43)(F) of the Act, 8 U.S.C. § 101(a)(43)(F) (2006), defines the term aggravated felony to mean certain "crimes of violence" under 18 U.S.C. § 16 (2006). In turn, § 16(b) defines a crime of violence as a felony offense that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
Unlike a "burglary offense," this "crime of violence" definition does not contain discrete elements that are tied to specific facts. Rather, a crime of violence is defined in probabilistic terms by reference to the level of "risk" that inheres in the crime "by its nature." When applied to this kind of Federal standard, the categorical approach still focuses on the "elements" of the alien's crime in a sense, but it no longer contemplates a matching of elements. Instead, the inquiry focuses more loosely on whether the alien's crime fits within a discrete category of offenses that would ordinarily be expected to present the risk described in 18 U.S.C. § 16(b). See, e.g., Chambers v. United States, 555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137 (2008); James v. United States, 550 U.S. at 208; Van Don Nguyen v. Holder, 571 F.3d 524, 530 (6th Cir. 2009). Suchimprecise standards are subject to disagreement by reasonable minds and therefore complicate the divisibility analysis.
In the first formulation described by the Second Circuit, the modified categorical approach may only be applied if certain structural or grammatical statutory characteristics are present on the face of the statute of conviction, such as the enumeration of a list of...
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