Whether dealing with criminal sentencing or potential removability, attorneys must constantly consider the proper scope and interpretation of the statutory construction method we know simply as the “categorical approach.” Last week’s BIA decision about the categorical approach, Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) (which I blogged about here), reminded me that there’s nothing simple when it comes to the standard method of statutory interpretation used in crimmigration law.In its most recent pronouncement on the categorical approach, the Supreme Court laid out its basic contours: attorneys and courts are to “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

However, after Chairez I, the Tenth Circuit held in United States v. Trent, 767 F.3d 1046 (10th Cir. 2014) that jury unanimity was not required by Mathis with respect to an element. Accordingly, the Board reversed its original decision in the second Chairez (Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [PDF version]). However, the Board did not change its position from Chairez I, deciding to continue applying its stricter standard for divisibility in cases arising outside of the jurisdiction of the Tenth Circuit.Recognizing the inconsistent approach to divisibility, the Attorney General issued a stay of the second Chairez decision in late 2015, pending her review.

The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.Matter of Chairez and Sama, 26 I&N Dec. 686 (A.G. 2015)Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) [not linked here], Matter of Chairez, 26 I&N Dec. 478 (BIA 2015); Matter of Sama, 2015 WL4761234 (BIA)18 U.S.C. § 924(e)The California law is: California Penal Code Ann. § 459Under section 76-10-508.1 of the Utah CodeMatter of Chairez, 26 I&N Dec. 349 (BIA 2014)United States v. Trent, 767 F.3d 1046 (10th Cir. 2014)The BIA also relied upon for guidance: Rendon v. Holder, 764 F.3d 1077, 1085, 1089 (9th Cir. 2014)Lawyer website:http://myattorneyusa.com

In a decision issued yesterday, the BIA managed it make it tougher to follow. Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [hereinafter Matter of Chairez II] (Pauley, Greer, and Malphrus). Board Member Pauley wrote the panel’s decision.