The BIA held that a statute of conviction is divisible if some conduct that satisfies an element of the offense could result in removal while other conduct would not. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012) (Cole, Pauley, and Wendtland, Board members). Board member Pauley wrote the panel’s decision.

Because a conviction under (a) can result from conduct that is not a crime of violence (recklessness) or conduct that is a crime of violence (intentional or knowing conduct), the IJ concluded that (a) was itself divisible thus he “considered the record of conviction to determine whether the respondent’s conduct was intentional or knowing, rather than reckless. This analysis was consistent with our decision in Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012).” The IJ may have been correct to follow the BIA, but the BIA, it was now forced to acknowledge as it overturned Lanferman, was trumped by the Supreme Court’s decision in Descamps.