In the Matter of Amicus Invitation No. 15-08-26

January 2, 2016

On Friday, September 25th, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief with the Board of Immigration Appeals (BIA) (attached here) on behalf of the Institute and its client the Federation for American Immigration Reform (FAIR) that addressed whether the BIA could decline to follow the Third Circuit’s approach for determining if a conviction for marihuana possession under Pennsylvania state law was an aggravated felony. Under the Immigration and Nationality Act (INA), immigrants who commit aggravated felonies are subject to removal from the United States. The BIA also asked for advice on the related question of whether the Supreme Court’s use of the categorical approach for determining aggravated felonies had overruled the Third Circuit’s prior approach.

 

IRLI and FAIR pointed out that Third Circuit case law did not yield consistent results even when analyzing the same statute. IRLI and FAIR encouraged the Board, as the agency charged with providing a uniform interpretation of immigration laws, to look beyond the muddled analysis and conflicting decisions within the Circuit. Instead, IRLI and FAIR encouraged the BIA to rely on its own decision-making authority due to its expertise within the immigration field.

 

IRLI and FAIR also analyzed whether the Board should apply the categorical approach used by the Supreme Court rather than the Third Circuit’s Barrett/Davis framework. IRLI and FAIR noted that the Supreme Court’s categorical approach has indeed replaced the Third Circuit precedent; however, IRLI and FAIR argued that a straight application of the categorical approach is not appropriate for the Pennsylvania statute at issue. Specifically, the Pennsylvania statute included different activities, all of which could warrant a conviction under the statute. Because of the broad spectrum of activities included in the statute, a modified categorical approach is the correct means of determining if the conviction was an aggravated felony. The modified categorical approach would allow the Board to consider certain charging documents in its decision. IRLI and FAIR also advocated that ambiguities in the statute should be interpreted by the BIA, and not just automatically interpreted to favor the alien.

 

Ultimately, the rule of law is supreme in determining how immigration laws are interpreted. While the Supreme Court’s categorical approach is the proper analysis for the BIA to use, the BIA should defer to its own application of that approach rather than to the state statutory scheme. In this case, blindly following the Supreme Court would render an incorrect outcome. The BIA, as the agency charged with enforcement of immigration laws, has the expertise necessary to properly interpret federal law to ensure the intent of the law is understood and that justice flows from that understanding.

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