Earlier, I had reported on the Attorney General’s decision in Chairez-Casterjon. Chairez-Casterjon says that when a defendant is convicted under a statute which can be violated in a way which is not a crime involving moral turpitude and another way which could be a crime involving moral turpitude, the immigration court should not presume that the individual was convicted in the way that was a crime involving moral turpitude.

This summer, the Attorney General remanded the matter to the Board of Immigration Appeals for further consideration in lieu of Mathis v United States. Mathis declined a similar rule to that being urged by the Government. A court cannot look at the “brute facts” to see which alternative pathway was used to criminal convict Mathis. Mathis had an armed career criminal conviction based on a generic burglary statute which was broader than the federal statute. The Supreme Court rejected a Government call which said that a court could look at the brute facts to determine whether the Defendant had come within the heartland of the Armed Career Criminal Statute.

The order provides:

By Attorney General Order No. 3583-2015 (Oct. 30,
2015), I directed the Board of Immigration Appeals (“Board”), pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2015), to refer to me the above-captioned cases for review of the Board’s decisions. The Board’s decisions were automatically stayed pending my review. To assist me in my review, I invited the parties to these proceedings and interested amici to submit briefs addressing the following issue:

What is the proper approach for determining “divisibility” within the meaning of Descamps v. United States, 133 S. Ct. 2276 (2013)? In particular, does Descamps require that a criminal statute be treated as “divisible” for purposes of the modified categorical approach only if, under applicable law, jurors must be unanimous as to the version of the offense committed?

After the parties and interested amici submitted their briefs, the United States Supreme Court granted a petition for a writ of certiorari in Mathis v. United States, No. 15-6092, a case presenting the question of the appropriate method for determining “divisibility” in the context of a criminal prosecution. See 136 S. Ct. 894 (2016) (mem.). On June 23, 2016, the Supreme Court issued its decision in Mathis. See 136 S. Ct. 2243 (2016). I now hereby lift the stay and remand these cases to the Board for any appropriate action.

I regard the decision as favorable and signalling an end of the desire of the agency to “peek at the down card” (e.g. the underlying allegations) which are unproven.  Of course, the application of the categorical rule in a given circuit is still controlling over the BIA ruling in most instances.  Whether this ruling changes the application of the categorical rule to the over $10,000 and/or the under 30 grams exemption is an open question.  For a nice discussion of the over $10,000 requirement and the categorical rule, consider this article from the Department of Justice’s Immigration Law Advisor.