By Sarah Bronstein
In 2013, the U.S Supreme Court issued its decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which was significant in its reliance on the traditional categorical approach to determine whether an offense has crime-based immigration consequences. The categorical approach involves an assessment of the conduct punished under the statute of conviction rather than an analysis of the facts of the case. Since then, advocates have been watching the BIA to see how it would apply Moncrieffe in its decisions. On September 22, 2014, the BIA issued its decision in Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), giving us another glimpse into the BIA’s interpretation of Moncrieffe.
The Respondent in this case, Mr. Ferreira, was a lawful permanent resident who pled guilty to a drug trafficking offense under Connecticut law. When he was placed in removal proceedings, he was charged as deportable under INA §§ 237(a)(2)(A)(iii) (aggravated felony) and (B)(i) (controlled substances). Both of these grounds of deportability refer to drug-related crimes as defined in section 102 of the Controlled Substances Act (21 USC §§ 801, et seq.). Mr. Ferreira filed a motion to terminate arguing that under the categorical approach, the government had not met its burden to establish removability because Connecticut’s statutes regulated two substances (benzylfentanyl and thenylfentanyl) that were not covered in the federal Controlled Substances Act. Mr. Ferreira argued that because the Connecticut statute was broader than the federal statute, it did not necessarily punish conduct that was an offense under the Controlled Substances Act as is required by Moncrieffe to establish crime-based immigration consequences.
The BIA, while applying Moncrieffe and the categorical approach, came to a different conclusion. The BIA reiterated that Moncrieffe and the categorical approach require “looking not to the facts of a prior criminal case, but to ‘whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding’ removal ground.” Matter of Ferreira, 26 I&N Dec. at 418 (BIA 2014) (citing Moncrieffe v. Holder, 133 S. Ct. at 1684 quoting Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 186 (2007). In order to do this, the respondent must show “a realistic probably, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Id. at 419. The BIA concluded that while the realistic probability test is sometimes overlooked when determining removability, it is part of the initial inquiry an Immigration Judge must make when applying the categorical approach. Id. at 419.
The BIA concluded that in order to consider whether Mr. Ferreira’s case should be terminated, the court must apply the realistic probability test. Applying the realistic probability test in this case requires determining whether Connecticut actually prosecutes individuals in cases involving benzylfentanyl and thenylfentanyl. The BIA found that because this analysis involves fact-finding, the case must be remanded to the Immigration Judge for application of the realistic probability test. Upon remand, both parties may submit evidence as to whether or not Connecticut in fact charges individuals with crimes relating to these two substances.
This case gives an indication that when analyzing cases under Moncrieffe and the categorical approach, the BIA will likely place an emphasis on the realistic probability test. CLINIC will continue to monitor the case law on this issue and provide updates as they occur.