Wright (not precedential): Modified Categorical Approach Cannot Use Accusatory Document Unless State Court Incorporated It Into Sentencing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Not Precedential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