By Ben Winograd

Our featured unpublished decision for January 2014 involves an issue as important as it is convoluted: when immigration judges may consult conviction records—such as an indictment or plea colloquy—to determine whether a noncitizen was convicted of a removable offense. The issue has attracted particular attention since the Supreme Court’s decision in Descamps v. United States, 133 S. Ct. 2276 (2013), which clarified when courts may and may not employ the “modified categorical approach.”

Since Descamps was decided, immigration attorneys have awaited guidance from the Board on whether it regards the Supreme Court’s ruling as having superseded existing agency precedent, such as Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), concerning when criminal statutes are “divisible.” Although the Board has cited Descamps in numerous unpublished decisions, its ruling last month in Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014), all but confirms that the Descamps divisibility test applies in removal proceedings. (Scroll down to read the Board’s decision.)

The respondent was placed in proceedings due to a theft conviction that the government alleged to be a crime involving moral turpitude. The statue of conviction, Fla. Stat. § 812.014(1), states in relevant part that a person commits theft if he or she uses “the property of another with intent to, either temporarily or permanently … (a) [d]eprive the other person of a right to the property or … (b) [a]ppropriate the property to his or her own use.” Under Matter of Lanferman, the Board would have found the statute divisible—and looked to the record of conviction—because it criminalizes both permanent takings, which are considered to be morally turpitudinous, and temporary takings, which are not.

Yet without mentioning Matter of Lanferman, the Board found the statute not to be divisible because permanent and temporary takings are alternative means of committing theft, not alternative elements. That is, to convict a defendant of theft, Florida jurors need not agree on whether a taking was temporary or permanent, only that it was one or the other.  As importantly, the Board characterized Descamps as “authoritative intervening precedent” and stated that “[p]rior Board decisions embracing a more expansive understanding of divisibility are necessarily superseded to the extent they are inconsistent with Descamps.” Having found Florida theft to be neither a categorical CIMT nor subject to the modified categorical approach, the Board dismissed the charge and terminated proceedings.

Perhaps the most noteworthy aspect of the Board’s unpublished decision is that it was written by Member Roger Pauley, who also authored Matter of Lanferman. Of course, the Board cannot overrule a published decision in an unpublished decision. But while the Board has not explicitly overruled Matter of Lanferman, this recent unpublished decision suggests that even its author recognizes that the decision is no longer controlling.

(For more on the Supreme Court’s Descamps decision and the modified categorical approach, see this practice advisory from the Immigrant Defense Project and the National Immigration Project of the National Lawyers Guild.)

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About this series. Each month, IRAC features one unpublished BIA decision selected for its potential to assist noncitizens in removal proceedings. To share an unpublished BIA decision, please email Ben Winograd. For a guide to IRAC’s larger collection, see our Index of Unpublished BIA Decisions.

Unpublished BIA Decision of the Month (January 2014)

Citation: Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014)
Panel: Roger Pauley, John Guendelsberger, Anne Greer
Respondent’s attorney: Patricia Elizee of Miami, Florida
DHS attorney: Margarita I. Cimadevilla

Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014) by Immigrant & Refugee Appellate Center