The Board of Immigration Appeals continued its efforts to resist the principal means of analyzing statutes that the Supreme Court requires in a case involving a drug conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014). Board Member Pauley wrote the panel’s decision.This case involved an LPR convicted via guilty plea of “sale of illegal drugs” in Connecticut.

By contrast, the BIA would subject drug possession offenses to a categorical analysis, in which state statutes that criminalize a swath of substances broader than the federal schedule would not automatically lead to a removability finding. SeeMatter of Paulus, 11 I. & N. Dec. 274 (BIA 1965); Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014) (discussed on crImmigration.com here).

In applying the categorical approach in the wake of Moncrieffe and Descamps, the Board has developed a requirement that respondents demonstrate a “realistic probability” that a state in fact prosecutes an overbroad statute in a way that falls outside the federal offense category. This “realistic probability” requirement, announced by the Board in September 2014 in the Matter of Ferreira, 26 I& N Dec. 415 (BIA 2014), comes from language in Moncrieffe and the earlier case of Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007) which cautions that the categorical approach is not an invitation to exercise “legal imagination” to find outlandish but unrealistic ways in which a state statute might be prosecuted outside the federal category. Moncrieffe, 133 S.Ct. at 1685.