Fiery BIA Concurrence Helps to Explain Court Backlogs

By Andrew R. Arthur on March 26, 2018

On March 14, 2018, the Board of Immigration Appeals (BIA) issued a precedential decision in Matter of Rosas, a case involving drug trafficking. While the decision itself is somewhat insightful, a concurrence, from Board Member Blair T. O'Connor, puts the onerous task facing the immigration courts in interpreting the immigration laws of the United States into their proper context.

In a recent publication in the Federal Register, the Department of Justice (DOJ) revealed that: "As of January 1, 2018, there were 667,292 total cases pending before the immigration courts." In addition to those cases, the American Bar Association's ABA Journal announced on January 5, 2018, that the number of administratively closed cases was actually "350,000 — more than half of which were closed in four years under the Obama Administration." This means that more than a million cases, in one status or another, are currently pending before the just more than 340 judges of the U.S. immigration courts.

In recent weeks, three cases that the attorney general has taken on certification have received a lot of press: Matter of Castro-Tum, Matter of E-F-H-L-, and Matter of A-B-. I have written about each at length, and each of them relates to a different subject. But each of them really has to do with the backlog, and with providing bright-line rules for judges to follow in applying the law. In Matter of Castro-Tum, those rules will ultimately address whether (and if so, when) cases may be administratively closed. In Matter of E-F-H-L-, the rules relate to the conduct of hearings on applications for asylum and for withholding of removal. In Matter of A-B-, the final rule will relate to: "Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable 'particular social group' for purposes of an application for asylum or withholding of removal."

Immigration judges need those rules because decisions in immigration court often have to be made relatively quickly. With more than 2,000 potential cases per immigration judge, the clearer the law, the quicker the decision.

The need for such bright-line rules relating to the criminal grounds of removability is critical to reducing the backlog, a fact that may not be as obvious to those who are not familiar with the immigration courts as it is to those of us who have appeared in or run one. To clarify: The criminal grounds of removal in the Immigration and Nationality Act (INA) rarely state that the violation of "X law" renders an alien removable under "Y ground of removability". I wrote extensively about this issue in a January 8, 2018, post captioned "The Categorical Approach, Backlogs, and Removability", and will not belabor the point here.

It brings me, however, to Matter of Rosas. The alien there "was convicted of possession of cocaine with the intent to distribute within 1,000 feet of school property in violation of section 2C:35-7 of the New Jersey Statutes." That state provision reads, in pertinent part:

Any person who violates subsection a. of [New Jersey Statutes (N.J.S.)] 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus ... is guilty of a crime of the third degree.

The New Jersey law referenced (N.J.S. 2C:35-5) relates in parts to drug-trafficking.

The operative New Jersey statute at issue in Matter of Rosas, N.J.S. 2C:35-5, is almost identical in parts to 21 U.S.C. § 860, which states:

Any person who violates section 841(a)(1) of this title or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground ... is (except as provided in subsection (b)) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense.

The first cited provision in section 860, 21 U.S.C. § 841(a)(1), is the primary federal drug-trafficking statute, and states:

Unlawful acts. Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.

The second cited provision, 21 U.S.C. § 856, relates to the maintenance of drug-involved premises.

The respondent in Matter of Rosas was charged with removability under section 237(a)(2)(A)(iii) of the INA, as an alien convicted at any time after admission with an aggravated felony, in this case an aggravated felony as defined in section 101(a)(43)(B) of the INA. The BIA in Matter of Rosas concisely explained the application of these provisions:

The term "aggravated felony" in section 101(a)(43)(B) of the Act encompasses "illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)." For purposes of this provision, "the term 'drug trafficking crime' means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)" and other statutes not relevant here. 18 U.S.C. § 924(c)(2) (2012). "Thus, a state drug conviction constitutes an aggravated felony [drug trafficking crime] if ... it would be punishable as a felony under the federal Controlled Substances Act." ... "[A] state [drug] offense constitutes a 'felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable" by more than 1 year of imprisonment "under that federal law."

To determine whether the respondent's State drug offense is punishable as a felony under the Controlled Substances Act, we employ the categorical approach, focusing on whether the elements of the respondent's State offense categorically define a felony under that Federal law. ... "Under this categorical approach, if 'the elements of the state crime are the same as or narrower than the elements of the federal offense, then the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony.'" ... If the State crime is not a categorical match but the statute is divisible — that is, comprised of "multiple alternative elements" — we may look to the relevant conviction records under a "modified categorical approach" to determine "what crime, with what elements, [the respondent] was convicted of."

In layman's terms, to determine whether a state drug conviction is an aggravated felony under section 101(a)(43)(B) of the INA, the judge must compare that conviction to the crimes listed in the Controlled Substances Act to determine whether there is an analogous federal crime, and if so whether that crime is punishable by a sentence of a year or more. If so, it is an aggravated felony; if not, it isn't.

The immigration judge in that matter had concluded that the respondent was not removable as an alien convicted of an aggravated felony based on a separate unpublished decision of the Court of Appeals for the Third Circuit, which had found that N.J.S. 2C:35-7:

[D]oes not categorically define an aggravated felony because it is indivisible and overbroad relative to § 860 since it is unclear whether "distributing" and "dispensing" are alternative elements of section 2C:35-7 or simply alternative means of violating that statute.

In other words, because 21 U.S.C. § 860 does not include the word "dispensing," while N.J.S. 2C:35-7 does, the New Jersey statute is broader than its analogue in federal law, and therefore respondent's conviction may not have satisfied that federal analogue, which is a felony.

Rather unexceptionally, the BIA held that the court was not limited to reviewing just 21 U.S.C. § 860 in assessing whether the New Jersey statute criminalized conduct that is a felony under the Controlled Substances act, such that it would be an aggravated felony under section 101(a)(43)(B) of the INA. Because "21 U.S.C. § 841(a)(1) [a felony under the Controlled Substances Act] is an appropriate Federal analogue to section 2C:35-7," the BIA concluded, the respondent was removable as charged.

This is unexceptional because (1) under Third Circuit Internal Operating Procedure 5.7, that court "by tradition does not cite to its not precedential decisions as authority" and (2) as the BIA noted, in the unpublished case, the government cited to section 860 as the appropriate federal analogue, and therefore the Third Circuit did not decide whether multiple statutes could be reviewed to find an analogous felony provision. The BIA concluded:

The only difference between section 2C:35-7 and § 841 is that the State statute "criminalizes a narrower subset of" controlled substance offenses "within the broader universe of those encompassed by" § 841. In other words, the only difference between a person who violates § 841 and a violator of section 2C:35-7 — or § 860 — is that the latter "has committed a § 841 offense and has done so in a particularly sensitive place."


Clearly, it would be absurd to hold that possession of cocaine with the intent to dispense it is an aggravated felony under section 101(a)(43)(B) of the Act but that the same crime committed within proximity to a school is not.

As noted above, however, it is the concurrence that is particularly enlightening. In that concurrence, Board Member O'Connor states:

As the majority decision observes, the conviction records in this case clearly establish that the respondent possessed cocaine with intent to distribute it within 1,000 feet of a school. The parties do not dispute this. Such an offense is punishable as a felony under the Controlled Substances Act and is therefore an aggravated felony drug trafficking crime. Congress clearly intended for aliens such as the respondent to be removed from the United States and to be ineligible for many forms of relief, including cancellation of removal. So it would seem that this is a straightforward case. Far from it. Once again, the categorical approach sends us "down the rabbit hole ... to a realm where we must close our eyes as judges to what we know as men and women."


Whether adjudicators may rely on any "appropriate Federal analogue," a combination of such analogues, or the Federal statute that most closely resembles the State statute in question in deciding whether a State offense is punishable as a felony under the Controlled Substances Act is an unresolved issue. While I find the majority's reasoning persuasive that adjudicators may consider more than one provision of the Controlled Substances Act in deciding whether a State offense would be punished as a felony under that Federal law —and such a rule makes eminent sense under the facts of this case — I have concerns over the potential difficulties that this rule may create for immigration adjudicators who are toiling under a methodology for making criminal law determinations that is already exceedingly complex. I especially disagree with the suggestion of the Department of Homeland Security ("DHS") that an Immigration Judge may only consider a single "pertinent federal equivalent" in deciding whether a State offense is an aggravated felony drug trafficking crime. [Emphasis added.]

He continues:

If there is a lesson to be learned from all of the legal maneuvering here, it is that making criminal law determinations in immigration cases has become excruciatingly complicated, and in an increasing number of cases, it is leading to absurd results. Indeed, both the DHS and the majority note that relying solely on § 860 in this case would mean that dispensing a controlled substance outside of a school zone in some States would be an aggravated felony, while the same conduct would not be an aggravated felony if done within a school zone.


However, this is not the first time that application of the categorical approach has led to absurd results. If anything, the categorical approach and its rules on divisibility are "increasingly le[ading] to results that Congress could not have intended." [Emphasis added.]

As Board Member O'Connor notes, this is far from an isolated case. For example, in Solorio-Ruiz vs. Sessions, the Court of Appeals for the Ninth Circuit, applying the categorical approach, overturned prior precedent in holding that "carjacking" under California law was not a "crime of violence" as that term is defined in 18 U.S.C. § 16, and therefore not an aggravated felony "crime of violence" under section 101(a)(43)(F) of the INA. In that case, the alien received a 10-year sentence for carjacking, not counting the 11 years and four months he received on another charge and enhancements. The state provision at issue, California Penal Code § 215(a), states:

"Carjacking" is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.

The circuit court held, after reviewing a federal sentencing case (Johnson vs. U.S.) and the California Court of Appeals' decision in People v. Hudson:

It ... cannot be said that in California carjacking requires the use of violent force. As Hudson shows, one can satisfy section 215(a)'s force requirement by driving a car at a slow speed — i.e., at a non-violent speed — and without harming a person or property. Because California carjacking does not require the violent force that Johnson demands, California carjacking is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F).

As the circuit court described the facts in Hudson:

There, the defendant took a car from a car dealership. ... As the defendant began to drive the car away, an employee tried to stop him by banging on the trunk, opening the driver's door, and trying to grab the defendant. ... There was no evidence that the defendant drove the car forcefully or fast. ... But the movement of the car at about 5 to 10 miles per hour, while the dealership employee was attempting to stop the defendant, was sufficient "force" to support a conviction. ... That was so because, in California, "the application of force inherent [in driving a vehicle away]" is enough to sustain a carjacking conviction, whenever the victim puts up the slightest resistance. ... It thus cannot be said that California carjacking requires the use of violent force.

With due respect to the circuit-court judges, a reasonable person could conclude that driving a stolen car (even at five to 10 miles an hour) with a person that you stole it from hanging off the driver's side of the car constitutes "violent force".

Under this logic, if any possible method of committing a crime would not satisfy the categorical-approach standard for an immigration ground of removability, no iteration of that crime would satisfy that standard. I categorically cannot state, however, that the Ninth Circuit was wrong. The fact is, as courts attempt to eliminate absurdity in the application of criminal statutes, they can produce precedents that lead to absurd results under immigration law.

As Board Member O'Connor noted:

If anything, the categorical approach and its rules on divisibility are "increasingly le[ading] to results that Congress could not have intended." Mathis [v. U.S.] ... (Alito, J., dissenting); see also id. ... (citing Moncrieffe [v. Holder] as an example where "the Court came to the conclusion that convictions in about half the states for even very large scale marijuana trafficking do not count as 'illicit trafficking in a controlled substance' under ... the immigration laws").

He calls on Congress to fix the "categorical approach", and I agree. Without more clarity in the immigration laws, and in particular the criminal grounds of removal, the task facing the immigration judges will become more complex, and the backlog will grow, as will appeals. In future posts, I will propose certain fixes to the criminal grounds of removability that would avoid absurdity, and prove more faithful to Congress's intent under the INA to remove criminal aliens.

Board Member O'Connor concludes by asserting that categorical approach "determinations are difficult enough for an immigration system that is already overburdened. In the words of Justice Alito, 'I wish them good luck.' Mathis ... (Alito, J., dissenting)."