Published Insights & Opinions on Immigration Law
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Ilaria Cacopardo, P.A., contributed to American Immigration Lawyers Association (AILA)’s Voice Magazine Issue 6.4 (Published in April of 2015) in her article titled “Back to the Drawing Board: Elements vs. Phrasing in Matter of Chairez II, where she states:
“Many immigration law attorneys saluted the Board of Immigration Appeals’ (BIA) precedent decision in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Matter of Chairez I), as a victory of the strict categorical approach to divisibility delineated in Descamps v. U.S., 133 S. Ct. 2276 (2013). True divisibility, according to Descamps, occurs when a criminal statute lists “potential offense elements in the alternatives,” and, thus, limits the recourse to a modified categorical approach to a very “narrow range of cases” that offer alternative offenses. See id. at 2283. [Descamps at 2288 defines as elements those facts about a crime that must be proved to a jury unanimously and beyond a reasonable doubt.] In addition, Chairez I also abrogated Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), and, thus, rejected its expanded approach to divisibility, giving practitioners a strong tool to limit the use of the record of conviction to ascertain removability or eligibility for relief. [Readers will remember that the BIA in Lanferman decided that a statute is divisible if some— but not all—violations of the criminal provision give rise to grounds for removal or ineligibility for relief, thus allowing the adjudicator to look to the record of conviction whenever a statute is overly broad, to ascertain which portion of the statute applied to a particular prosecution.] Unfortunately, as we shall see below, in the new Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) (Matter of Chairez II), what once seemed a welcome and refreshing decision providing consistency and clarity has become muddled once more, creating a lack of uniformity among the circuit courts that eventually may bring the issue before the U.S. Supreme Court yet again.”
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