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Second Circuit throws doubt on the Categorical Approach of Drug Convictions

In Doe v. Sessions, the Second Circuit found that the BIA did not err in determining that the petitioner’s federal drug trafficking conviction made him removable, even though the Controlled Substances Act (CSA) schedules of drugs were broader at the time of conviction than at the time of removal.

Court Finds Violation of Illinois Statute Pertaining to Possession of Weapons by Felons Is Not an Aggravated Felony

The Seventh Circuit granted the petition for review and remanded, finding that the LPR petitioner, who had been convicted of a felony and was subsequently convicted of possessing a weapon in violation of 720 ILCS 5/24–1.1(a), was not convicted of an aggravated felony pursuant to INA §101(a)(43). The court held that Illinois’s definition of a “firearm” is broader than that of its federal counterpart, and thus a conviction under the statute could not be treated as an aggravated felony.

l: Court Finds BIA Erred in Barring Cancellation and Asylum Applications of Petitioner Convicted Under NY Penal Law §220.31

The Second Circuit granted in part the petition for review, holding that the BIA should have applied the categorical approach to determine whether the petitioner’s N.Y. Penal Law §220.31 conviction was an aggravated felony under the INA, because §220.31 defines a single crime and is therefore an indivisible statute. Applying the categorical approach, the court concluded that the petitioner’s conviction under N.Y. Penal Law §220.31 did not constitute a drug-trafficking aggravated felony and thus did not bar the petitioner from seeking cancellation of removal and asylum.

Court Finds Receipt of Embezzled Property Is Not Categorically an Aggravated Felony

The Fourth Circuit held that the BIA erred in concluding that the petitioner was an aggravated felon who was ineligible for cancellation of removal under INA §240A(a)(3), finding that a conviction for receipt of embezzled property under 18 USC §659 is not an aggravated felony under the categorical approach

Got a theft offense. Think your an aggravated felon? Think again.

The Ninth Circuit granted the petition for review and remanded, finding that a conviction under California’s theft statute is categorically not a theft offense, and thus not an aggravated felony, because the statute is both overbroad and indivisible, and such a conviction is not susceptible to the modified categorical approach pursuant to Descamps v. United States and Rendon v. Holder.

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