BIA Makes Important Decisions Regarding Aggravated Felony Convictions

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There are several crimes that qualify as aggravated felony convictions under immigration law. Even if a crime is considered a misdemeanor under state law, it can be seen as an aggravated felony conviction for immigration purposes. A conviction for a crime that qualifies as an aggravated felony will foreclose a non-citizen from applying for most types of relief from removal such as asylum and cancellation of removal.

A non-citizen may be put into removal proceedings due to a conviction for an aggravated felony. Before the non-citizen can apply for relief with the immigration court, he must show that the crime he was convicted of does not qualify as an aggravated felony. This analysis depends on several factors: the language of the state statute of conviction, whether the state statute is divisible, what type of evidence is contained in the conviction record, and the language of the corresponding federal statute.

Recently, the Board of Immigration Appeals (BIA) made some important decisions concerning whether certain convictions qualify as aggravated felonies. The first case comes from North Dakota where the respondent was convicted of the crime of contributing to the delinquency of a minor under North Dakota law. The government charged him as being removable from the United States for being convicted of an aggravated felony, specifically sexual abuse of a minor under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). First, the court looks to the elements of the statute of conviction. In this case they determined that the North Dakota statute did not contain any reference to sexual conduct. Since the elements did not line up, the North Dakota statute is not divisible. Since the statute is not divisible the court may not look at the record of conviction to determine what the actual conduct of the underlying conviction was. A statute is divisible when some but not all of the elements of the offense give rise to removability. In that case, the court can look at the record of conviction to see exactly which part of the statute the person was convicted for and then see if that matches up with an immigration violation. The BIA ended up terminating the removal proceedings against the respondent.

In a second case, the BIA remanded the case back to the Immigration Judge due to the recent Supreme Court decision of Descamps v. United States. The decision in Descamps states that the Immigration Judge can use a modified categorical approach if the statute under which the respondent was convicted is divisible, that is if it sets out various offenses for which someone can be convicted of, and only some of those offenses are a match to the federal standard for the crime. In this case, the respondent was convicted in Minnesota of criminal sexual conduct. That qualifies as an aggravated felony of sexual abuse with a minor. However, the Minnesota statute did not make any reference to the age of the victim. At the time of the Immigration Judge’s decision, the Descamps decision was not yet available. The Immigration Judge decided that the statute was divisible and looked at the record of conviction to find that the victim was 15 years old and indeed a minor. Therefore, the Judge decided that the respondent was guilty of an aggravated felony and not eligible for any immigration relief. Since the Immigration Judge did not have the Descamps decision available, the BIA remanded the case in light of that decision so that the Immigration Judge can conduct further proceedings on the case.


These two cases from the BIA show that removal cases based on aggravated felony convictions can be extremely complicated and require a lot of research. Each state has its own statutes for criminal conduct which can be viewed very differently by immigration courts. For example, a conviction for assault and battery in one state could qualify as an aggravated felony for immigration purposes but a conviction by the same name in another state may not. It all comes down to the way that the state statutes are written and whether the elements of the crime can be divided into separate parts.
When dealing with criminal matters in immigration it can be very beneficial to have a vague record of conviction. As you can see in the Minnesota case, the respondent plead to a crime that did not state whether the victim was a minor or not. However, because the Immigration Judge was able to look to the record of conviction, he was able to find out that the victim was in fact a minor. If the record of conviction were silent on that fact, then the Immigration Judge would not have discovered it.