26 I. & N. Dec. 736
BIA2016Background
- Respondent (Mexican national, LPR since 1991) was convicted on Aug. 5, 2014 of failing to appear under 18 U.S.C. §§ 3146(a)(1) and (b)(1)(A)(ii).
- DHS charged removability as an aggravated felon under INA § 101(a)(43)(T) (failure to appear before a court pursuant to a court order to answer to or dispose of a felony charge punishable by ≥2 years).
- Immigration Judge (IJ) terminated proceedings, finding § 3146(a)(1) broader than the INA provision and applying the categorical approach to all components of § 101(a)(43)(T).
- DHS appealed, arguing the limiting components of § 101(a)(43)(T) are circumstance-specific (Nijhawan framework) and thus require inquiry into the particular facts of the respondent’s conviction.
- The BIA held that (a) the terms “failure to appear” and “before a court” require the categorical approach, but (b) the remaining three limiting components — (i) pursuant to a court order, (ii) to answer to or dispose of a felony charge, (iii) the felony punishable by ≥2 years — are circumstance-specific.
- BIA concluded as a matter of law that § 3146(a)(1) failures occurring "as required by the conditions of release" under chapter 207 are necessarily "pursuant to a court order," remanded to IJ to resolve the remaining two components using circumstance-specific evidence (plea, charging papers, judgment, etc.).
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether a § 3146(a)(1) conviction is an aggravated felony under INA § 101(a)(43)(T) | § 3146(a)(1) is broader than § 101(a)(43)(T); apply categorical approach and not removable | Apply circumstance-specific approach for the limiting components; § 3146 not a categorical match and Congress intended broader reach | Mixed approach: categorical for “failure to appear” and “before a court”; circumstance-specific for the three limiting factors; remand to decide two unresolved limiting factors |
| Whether the phrases “failure to appear” and “before a court” require categorical analysis | Categorical analysis required for all components (relies on Renteria-Morales) | These are generic elements, so categorical approach applies to them | Categorical approach applies to “failure to appear” and “before a court” |
| Whether the qualifiers “pursuant to a court order,” “to answer to or dispose of a felony,” and “for which a sentence of 2 years+ may be imposed” require categorical analysis | Should be categorical | These are fact-specific aggravating circumstances; use circumstance-specific approach (Nijhawan) | Circumstance-specific approach applies to these three limiting components |
| Whether respondent’s § 3146(a)(1) failure was “pursuant to a court order” | § 3146(a)(1) could encompass non‑court-order releases (argues broader) | Chapter 207 release mechanisms are by court order; failures under § 3146(a)(1) are therefore pursuant to court order | As a matter of law, under Federal law § 3146(a)(1) failures tied to chapter 207 releases are “pursuant to a court order” (resolved in DHS’s favor) |
Key Cases Cited
- Nijhawan v. Holder, 557 U.S. 29 (circumstance-specific approach appropriate for certain aggravated-felony qualifiers)
- United States v. Hayes, 555 U.S. 415 (statutory element unlikely when only a few statutes include it)
- Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir.) (earlier decision applying categorical approach to § 101(a)(43)(T))
- Taylor v. United States, 495 U.S. 575 (categorical approach for generic crimes)
- Moncrieffe v. Holder, 569 U.S. 184 (use categorical approach when statute defines a generic crime)