BIA: Categorical approach is circuit-specific

No one has ever said that the categorical approach is straightforward. In a decision issued yesterday, the BIA managed it make it tougher to follow. Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [hereinafter Matter of Chairez II] (Pauley, Greer, and Malphrus). Board Member Pauley wrote the panel’s decision.

Immigration attorneys and judges are required to use the categorical approach to determine whether a crime falls into a category of removable offense listed in the INA. The same analysis applies to possible sentencing enhancements in criminal proceedings, thus categorical approach cases arise from both contexts. In its most recent explication of the categorical approach, the Supreme Court wrote:

To determine whether a past conviction is for one of those crimes, courts use what has become known as the “categorical approach”: They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the “generic” crime—i.e., the offense as commonly understood. The prior conviction qualifies as an [Armed Career Criminal Act] predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). Except for replacing the ACCA with the INA, there’s no difference in the immigration law context.

The Descamps Court went on to explain an important wrinkle to the categorical approach:

We have previously approved a variant of this method—labeled (not very inventively) the “modified categorical approach”—when a prior conviction is for violating a so-called “divisible statute.” That kind of statute sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction. 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). If jury unanimity isn’t required, “then it follows that intent, knowledge, and recklessness are merely alternative ‘means’ by which a defendant can discharge a firearm, not alternative ‘elements’ of the discharge offense.” Matter of Chairez II, 26 I&N Dec. at 354

Yesterday the Board expanded that understanding, and in the process through a significant wrench in its uniform application nationwide. In effect, the BIA recognized that there might be multiple ways of understanding the categorical approach analysis. Everything depends on what the relevant federal circuit court says. Matter of Chairez II, 26 I&N Dec. at 481. Only if the federal circuit is silent does the Board’s position in Matter of Chairez I still reign. As the Board put it, “our interpretation of Descamps is to be followed only by those Immigration Judges who sit within the jurisdiction of a court of appeals that has not yet explained how it understands divisibility to operate after Descamps. When the court does explain its interpretation in a precedent decisions…then the circuit’s law should be followed.” Id. 481-82.

As a simple matter of administrative law, this is not a particularly outlandish holding. The Board is simply recognizing that the categorical approach is a principle of statutory construction that the federal courts are just as equipped—if not better equipped—to interpret as it is. Consequently, the federal courts do not defer to the Board’s understanding of the categorical approach. Federal circuit caselaw, therefore, trumps BIA caselaw in this context.

The end result is that IJs in different circuits will now take different views of what the categorical approach means. In several circuits, that means that the word “element” will be defined as “those facts about a crime that must be proved to a jury unanimously and beyond a reasonable doubt.” Id. at 482. This is the approach that the BIA adopted in its earlier Matter of Chairez I decision. It’s also the approach adopted by a number of circuits, see footnote 3 of yesterday’s decision, including a Ninth Circuit decision that I’ve blogged about (see here).

IJs in other parts of the country, however, will use a dramatically different analysis. The Tenth Circuit, for example, has taken the view that “a statute is divisible…whenever it employs ‘alternative statutory phrases.’” Id. at 482 (discussing United States v. Trent, 767 F.3d 1046, 1060-61 (10th Cir. 2014)). If I’m correct in reading this “alternative statutory phrases” language as statutory provisions written in the disjunctive (i.e., that have an “or”), then a ton of criminal statutes will be deemed to have alternative elements and thus be divisible statutes.

The Board implied that the First and Third Circuits have adopted a similar approach as the Tenth. Id. at 483 n.3. I’m less convinced. I don’t think the First Circuit case, United States v. Carter, 752 F.3d 8, 17-18 (1st Cir. 2014), or Third Circuit case, United States v. Marrero, 743 F.3d 389, 395-97 (3d Cir. 2014), that the Board cites go that far. Both cases apply the analytical method that the Board notes, but neither explains why they do so. They instead strike me as examples of cases where the courts didn’t grapple with what constitutes an element of an offense as opposed to an alternative means of committing an offense. This isn’t inherently problematic. The courts apparently thought they could decide the cases without engaging in this messy doctrinal area.

In the end, it doesn’t really matter whether the First and Third Circuits follow a similar analysis to the categorical approach, as does the Tenth Circuit. The fact remains that the Tenth Circuit has adopted one view and other circuits have adopted another view. The Tenth Circuit’s take strikes as conflicting with Descamps, but that’s not for the BIA to decide. Only the Tenth Circuit sitting en banc or the Supreme Court can do that. Until that happens, immigration attorneys and judges will have to grapple with at least two different categorical approaches. That’s far from ideal.

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