Tuesday, November 09, 2010

Johnson (not precedential): BIA Incorrectly Overturned IJ's Factual Findings On Standard Lower Than Clear Error

Johnson v. Holder
No. 09-1949
Not Precedential
May 20, 2010

Judges Ambro, Chagares and Aldisert. Per Curiam.

Overturning the BIA in a case originally decided by IJ Walter A. Durling.

In a claim for protection under CAT, the BIA improperly reversed the IJ's factual findings using a de novo standard of review rather than only upon finding clear error in the IJ's conclusion of what would likely happen if the United States deported him. That standard is the one to apply according to Kaplun v. Holder, 2010 WL 1409019 (3d Cir. Apr. 9, 2010).

Friday, November 05, 2010

Bobb (not precedential): Categorical Approach Required To Analyze Crimes Involving Moral Turpitude

Bobb v. Holder
No. 08-2644
Not Precedential
May 11, 2010

Judges Scirica, Chagares, and Weis. Opinion by Judge Weis.

Overturning IJ Henry Dogin and the BIA.

Use the categorical approach to analyze whether a conviction is a crime involving moral turpitude. Partyka v. Attorney Gen., 417 F.3d 408 (3d Cir. 2005); Jean-Louis v. Holder, 582 F.3d 462 (3d Cir. 2009). Official misconduct in violation of NJSA 2C:30-2 is not a crime involving moral turpitude under the categorical approach because it punishes virtually any action done without authorization by an official. That includes many actions that are not crimes involving moral turpitude.

Wednesday, November 03, 2010

Wright (not precedential): Modified Categorical Approach Cannot Use Accusatory Document Unless State Court Incorporated It Into Sentencing

Wright v. Holder
Nos. 05-2536 and 05-3062
Not Precedential
April 16, 2010

Judges Rendell, Fisher, and Garth. Per Curiam.

The BIA incorrectly relied on an affidavit of probable cause to conclude that Mr. Wright was convicted of an aggravated felony (by being related to a controlled substance). The BIA incorrectly overturned IJ Riefkohl's conclusion that it was not an aggravated felony.

The convictions (NY Penal Law 221.40 and NY Penal Law 221.20) were not aggravated felonies. It was not a state felony including an illicit trafficking element -- nothing involved unlawful trading or dealing of a controlled substance. It was not a hypothetical federal felony -- this requires using a categorical approach rather than the circumstance-specific approach in Nijhawan because INA 101(a)(43)(B) refers to a generic crime. The BIA improperly considered the affidavit of probable cause -- even if hypothetically speaking it was the accusatory document, the BIA may not consider it where the state court never referred to it in the sentence and commitment order.