BIA continues eroding categorical approach

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. The immigration judge found that this conviction constituted illicit trafficking, a variety of aggravated felony, INA § 101(a)(43)(B), and a controlled substance offense, INA § 237(a)(2)(B)(i). On appeal, the migrant argued that DHS failed to meet its burden to show that his conviction necessarily fell into the definitions of these categories of removable offenses because, at the time he pled, Connecticut classified at least two drugs as controlled substances that the federal government did not. Matter of Ferreira, 26 I&N Dec. at 416.

Based on this argument, this should have been an open and shut victory for Ferreira. The Supreme Court has repeatedly insisted that immigration judges are to use the categorical approach and, in limited circumstances and for a limited purpose, the modified categorical to figure out whether a particular conviction results in removal (or in a sentencing enhancement). As the Court put it in its most recent decision regarding the categorical and modified categorical approaches, the categorical approach requires adjudicators to “focus on the elements, rather than the facts, of a crime.” Descamps v. United States, 133 S. Ct. 2276, 2285 (2013).

Despite the Supreme Court’s consistent support for the categorical approach, the BIA has been anything but willing to follow along. As I wrote on Tuesday, the BIA recently expanded the “circumstance-specific” approach beyond the context in which the Supreme Court recognized its applicability. Similarly, in July it issued a decision interpreting the categorical approach in what I described at the time as “odd and problematic.”

Matter of Ferreira continues that trend. In this case, the BIA turned the tables on respondents who DHS claims are deportable under INA § 237(a)(2). The INA is quite clear that “the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable” lays on DHS. INA § 240(c)(3)(A). The BIA has now shifted that burden onto migrants in certain circumstances involving drug crimes.

Both the illicit trafficking of a controlled substance type of aggravated felony, INA § 101(a)(43)(B), and the controlled substance offense, INA § 237(a)(2)(B)(i), bases of removal rely on the definition of “controlled substance” used in the federal Controlled Substances Act (CSA). The federal CSA lists all the usual suspects of drugs in five “schedules,” plus many more, and is regularly updated via a regulation, 21 C.F.R. §§ 1308.11-1308.15. Indeed, as the Board noted, “[s]ince the enactment of the CSA in 1970, approximately 160 substances have been added, removed, or transferred from one schedule to another.” Matter of Ferreira, 26 I&N Dec. at 418.

For years until now, immigration judges were required to determine whether the elements of a state statute necessarily punished activity that is also punished by the federal CSA. As I write in my forthcoming book, Crimmigration Law (American Bar Association forthcoming 2015): “Since 1965, while interpreting a now-repealed statutory provision, the BIA has steadfastly maintained that a state drug possession crime can result in deportation or exclusion only if the government shows that the conviction necessarily involved a substance punished by federal drug laws. More recently it explained that this applies to ‘crimes involving the possession or distribution of a particular drug.’”

Matter of Ferreira dispenses with that requirement. A migrant facing removal for one of the INA’s drug provisions “must show ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’” Matter of Ferreira,26 I&N Dec. at 419. The realistic probability inquiry, the Board added, “is part of the initial inquiry that an Immigration Judge must undertake when applying the categorical approach.” Id. This test, the Board reasoned, “is necessary to prevent the categorical approach from eliminating the immigration consequences for many State drug offenses, including trafficking crimes.” Id. at 421. Importantly, the Board placed the burden of showing this realistic probability on the migrant rather than DHS. Id.

There are multiple problems with the Board’s analysis. First, as I’ve already suggested, Matter of Ferreira shifts the burden onto the migrant to show he’s not removable when the INA explicitly states that the burden is on DHS. The BIA can’t simply rewrite a statute simply because it does not like the results.

Second, the Board doesn’t get to express its preference about what outcomes should result. It has no authority to decide that the categorical approach “eliminate[s] the immigration consequences for many State drug offenses.” Id. The fact of the matter is that the Supreme Court repeatedly emphasizes that immigration courts are to use the categorical approach to determine whether a migrant is removable. The consequences of using the categorical approach are policy judgments reserved for Congress.

The Supreme Court has identified three reasons for using the categorical approach, all of which the Board’s decision disregards. To quote again from my book,

First, the categorical and modified categorical approach emphasizes Congress’s decision to trigger removal upon a ‘conviction’ for a removable offense. Congress has the ability to tie removal to commission of certain conduct or an exploration of the facts surrounding a conviction…but when it uses the word ‘conviction’ courts must give meaning to that term….Second, using the categorical and modified categorical analysis prevents sentencing courts and immigration courts from treading on findings of fact that the Sixth Amendment reserves to juries and, if the defendant waives the jury trial right, judges in criminal proceedings. Third, allowing immigration courts to venture beyond the categorical and modified categorical approach would require them to conduct mini-trials that they are not equipped to do.

The Board, it seems, is not concerned by these explanations. First, it seems to think that a conviction is synonymous with a “reasonable probability” of a conviction. Second, it has no problem assuming facts rather than taking the facts as found by a jury or judge. Indeed, in Matter of Ferreira the Board admitted its willingness to “assum[e] that the substance was one included in [the federal CSA].” 26 I&N Dec. at 421. Third, it completely discards the Supreme Court’s desire to avoid mini-trials in immigration court. The reasonable probability test, the Board acknowledged, “requires fact-finding.” Id. at 422.

Only time will tell whether the Board’s deviation from longstanding precedent carries the day. For now, Matter of Ferreira stands as a clear indication of the Board’s distaste for an analytical method that it finds too migrant-friendly.

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