Monday, March 8, 2021

BIA Decision on the Categorical Approach

The Board of Immigration Appeals has issued a decision in Matter of NEMIS, 28 I&N Dec. 250 (BIA 2021).

(1)   Applying the categorical approach, the conspiracy statute, 18 U.S.C. § 371 (2012), is overbroad relative to the generic definition of a crime involving moral turpitude, and divisible between the offense clause, which may or may not involve moral turpitude, and the defraud clause of the statute, which is categorically a crime involving moral turpitude. 

(2)   To determine whether a conspiracy conviction under the offense clause of 18 U.S.C. § ‍371 constitutes a crime involving moral turpitude, the underlying statute of conviction should be examined under the categorical, and if applicable, modified categorical approach. 

(3)   The respondent’s conviction under 18 U.S.C. § 1546(a) (2012), punishing fraud and misuse of visas, permits, and other documents, is overbroad and divisible such that the modified categorical approach is applicable and it was proper to consider the conviction records.  Matter of Serna, 20 I&N Dec. 579 (BIA 1992), clarified. 

(4)   The respondent’s conviction for conspiracy to commit visa fraud in violation of 18 ‍U.S.C. §§ 371 and 1546(a) is a conviction for a crime involving moral turpitude under the modified categorical approach. 

KJ

https://lawprofessors.typepad.com/immigration/2021/03/bia-decision-on-the-categorical-approach.html

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