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Is a Statute Divisible for inadmissibility purposes?


The Attorney General (AG) referred two decisions of the BIA, Matter of Chairez-Castrejonand Matter of Sama, to herself for review of an issue relating to the application ofDescamps v. United States, ordering that those cases be stayed and not be regarded as precedential or binding as to the issue under review during the pendency of her review. The issue is: What is the proper approach for determining “divisibility” within the meaning ofDescamps? In particular, does Descamps require that a criminal statute be treated as “divisible” for purposes of the modified categorical approach only if, under applicable law, jurors must be unanimous as to the version of the offense committed?

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