The BIA issued an important opinion detailing the latest turn in the categorical approach analysis. Specifically addressing the crime of violence type of aggravated felony and the firearms offense basis of removal, Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Pauley, Malphrus, and Greer, Board Members), promises to affect crimmigration law analyses across the board. Board member Pauley wrote the panel’s opinion.

The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.Id.A year after Descamps, the Board tackled head on how immigration attorneys and judges are to figure out whether a statute contains alternative elements. Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) [Matter of Chairez I]. According to the Board, as I blogged last year, “an offense’s ‘elements’ are those facts about the crime which ‘[t]he Sixth Amendment contemplates that a jury—not a sentencing court—will find…unanimously and beyond a reasonable doubt.’” Id. (quoting Descamps, 133 S. Ct. at 2288).

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

However, if the statute was not divisible, the Board would be forced to assess only the language of the statute as a whole to determine if the conviction was for a crime of violence.In the first two Chairez cases, the Board read Descamps in such a way as to find that the statute was divisible. In the first Chairez decision (Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) [PDF version]), the Board found that the statute was not divisible because in order for the mental states to be considered “elements,” a jury would have to agree on the mental state to convict. 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.

After Descamps, courts were left trying to thread a line between alternative elements and alternative means of committing a crime. The BIA did this earlier this year in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), which I wrote about at the time. The Ninth Circuit’s approach here largely follows the BIA’s position.The prosecution has to prove elements and means, but the key difference between an element and a means of commission, the Ninth Circuit explained, is jury unanimity.