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BIA Says DHS Is Not Precluded by Res Judicata from Initiating Separate Proceedings

Declining to follow the Ninth Circuit’s ruling in Bravo-Pedroza v. Gonzales, the BIA held that DHS is not precluded by res judicata from initiating a separate proceeding to remove a foreign national as one convicted of an aggravated felony burglary offense under INA §101(a)(43)(G), based on the same conviction that supported a crime of violence aggravated felony charge under §101(a)(43)(F) in the prior proceeding.

Mens Rea needed for aggravated felony

The respondent’s removability as an alien convicted of an aggravated felony was not established where section 76‑10‑508.1 of the Utah Code was not shown to be divisible with respect to the mens rea necessary for the offense to qualify as a crime of violence under 18 U.S.C. § 16(a)(2012), based on the Supreme Court’s decisions in Mathis v.‍ United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2276 (2013).  Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), and Matter of Chairez, 26 I&N Dec. 478 (BIA 2015), clarified.

Crime of Violence

Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016)

The crime of aggravated battery in violation of the Puerto Rico Penal Code is not categorically a crime of violence under 18 U.S.C. § 16(a) (2012), but controlling circuit court law should be followed regarding the question whether conduct such as the use or threatened use of poison to injure another person involves sufficient “force” to constitute a crime of violence. Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016), clarified.

Supreme Court Grants Cert in Lynch v. Dimaya

Today, the U.S. Supreme Court granted the petition for a writ of certiorari in Lynch v. Dimaya to hear whether the definition of a “crime of violence” in the immigration context is unconstitutionally vague. Last year in the case, the Ninth Circuit reaffirmed that a noncitizen may bring a void for vagueness challenge to the definition and ruled that the language in 18 USC §16(b), as incorporated into INA §101(a)(43)(F), is unconstitutionally vague. The court found that “crime of violence” suffers from the same indeterminacy the Supreme Court found in the Armed Career Criminal Act’s residual clause definition of a “violent felony” in Johnson v. United States.

Crime of Violence further defined

The BIA ruled that as a crime of violence under 18 USC §16(a), the state statute must require as an element the use, attempted use, or threatened use of violent physical force. The BIA further held that the crime of aggravated battery under the Puerto Rico Penal Code, which may be committed by means that do not require the use of violent physical force, is not categorically a crime of violence under 18 USC §16(a).

IA Says Probationary Confinement in Substance Abuse Treatment Facility Is “Term of Confinement”

  1. BIA Says Probationary Confinement in Substance Abuse Treatment Facility Is “Term of Confinement”
    In a published decision issued today, the BIA held that a term of confinement in a substance abuse treatment facility imposed as a condition of probation constitutes a “term of confinement” under INA §101(a)(48)(B) for purposes of determining if an offense is a crime of violence under INA §101(a)(43)(F).

After 20 years of IIRAIRA – 9th Circuit rules that crime of violence definition is unconstitutionally vague

The Ninth Circuit granted the petition for review and remanded, holding that the language in 18 USC §16(b), which is incorporated into INA §101(a)(43)(F)’s definition of a “crime of violence,” was unconstitutionally vague. The court found that §16(b)’s language suffered from the same indeterminacy the U.S. Supreme Court found in the Armed Career Criminal Act’s (ACCA) “residual clause” definition of a violent felony in Johnson v. United States, and was thus void for vagueness.

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