Voice

May 2014

Issue link: http://ailahub.aila.org/i/304305

Contents of this Issue

Navigation

Page 2 of 25

Lifestyle 9 What's Trending 9 Inter Alia 9 Get Connected 9 Member Advantage 9 Contact Us u Immigration & Crimes w Immigration & Health care w going global w business immigration w behind the case sponsor: about us: 3 CMB REGIONAL CENTERS cmb regional centers Practice Pointers by Mary E. Kramer I s Descamps v. United States, 133 S. Ct. 2276 (2013), making a difference in your crimmigration practice? It should be. Descamps represents a recalibration of the categorical approach and, in most cases, will help noncitizens argue against removability or in favor of relief. Matter of Lanferman Abrogated Decided before Descamps, the Board of Immigration Appeals' (BIA) position on when a statute qualifies as divisible (leading to a modified categorical approach) is set forth in Maer of Lanferman, 25 I&N Dec. 721 (BIA 2012). If the BIA does not withdraw from Lanferman soon, the Second Circuit might do so itself. Descamps shows that the Lanferman panel got it wrong. We know that the INA sets forth grounds of removability based on the classification of crimes, such as aggravated felonies, moral turpitude crimes, controlled substance violations, and firearm offenses. To determine whether a particular criminal conviction falls into a certain category, adjudicators employ a "categorical approach." at phrase refers to the classification of crimes according to their generic definition. is will be determined according to contemporary usage based on a survey of statutes of the 50 states, the federal code, and the Model Penal Code. Taylor v. United States, 495 U.S. 575, 592 (1990). Practice Pointer: A practitioner's goal in filing a motion to dismiss the charge—or memorandum in support of statutory eligibility for relief—is to argue that the conviction does not fall into the generic classification of the crime. By way of example, cancellation of removal for permanent residents under INA §240A(a) is not available if the noncitizen has an aggravated felony conviction, so the goal of a legal memorandum in support of eligibility would be to argue against aggravated felony classification. Only if the statute of conviction is divisible will an adjudicator revert to the modified categorical approach. A modified approach is a tool for implementing the categorical approach: the judge or deciding official looks to the record of conviction to determine under which portion of the statute the foreign national was prosecuted. e record includes the charging document, plea documents, final judgment, and sentence. Shepard v. United States, 544 U.S. 13, 25 (2005). In Maer of Lanferman, the BIA took its cue from Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84, 90–92 (2d Cir. 2009), and articulated three distinct approaches to defining divisibility: 1. Divisibility exists where alternative means of commiing a violation are enumerated as discrete One Year Later: The Impact of Descamps SCOTUS Sees Crime Through Categorical Lens BACKTRACK "In Descamps, the U.S. Supreme Court rejects the Ninth Circuit's approach to divisibility. Instead, the Court clarifies that an overly broad statute will categorically not meet the definition of the generic crime." next uww

Articles in this issue

Links on this page

Archives of this issue

view archives of Voice - May 2014