‘Crimmigration’ Updates: Board of Immigration Appeals and Attorney General Decisions

The following is a summary of recent precedent setting decisions from the Board of Immigration Appeals (BIA), the appellate level immigration court. All of these cases involve the interpretation of criminal actions for immigration purposes.

In Matter of Wong, 28 I&N Dec. 518, decided on March 30, 2022, the Board held that a conviction for a violation of a state statute, even if the state considers it a violation and not a crime, is a conviction for immigration purposes where the defendant was afforded all the mandatory constitutional rights of a criminal procedure. In this matter, the respondent had argued that his conviction for the disorderly-persons offense of theft by deception in New Jersey was not a conviction for immigration purposes as he was not afforded certain rights, such as a jury trial, and that his conviction is not a crime within the meaning of the New Jersey Constitution. The Board held that as the minimum constitutional safeguards applied to the respondent’s state court proceedings, his conviction was a crime for immigration purposes.

In Matter of Dingus, 28 I&N Dec. 529, decided on April 22, the Board held that a state court’s nunc pro tunc (retroactive) order modifying or amending the subject matter of a criminal conviction will be given full effect for immigration purposes if it was based on a procedural or substantive defect in the criminal proceedings. If the modification of the criminal conviction was done for immigration purposes, or some other purpose unrelated to the merits of the criminal proceedings, the conviction would remain valid for immigration purposes. The Board specifically held that a Virginia state court’s nunc pro tunc order, which changed the identified controlled substance relating to a distribution of a controlled substance, rendered the original conviction invalid for immigration purposes and that the modification should be given full effect for immigration purposes.

In Matter of Dang, 28 I& N Dec. 541, decided on April 28, the Board held that the definition of “physical force” relating to INA §237(a)(2)(E)(i) is controlled by the Supreme Court’s decisions in Johnson v. United States, 559 U.S. 133 (2010), and Stokeling v. United States, 139 S. Ct. 544 (2019), and not the Court’s definition of “physical force” in a 2014 case, United States v. Castleman. Section 237(a)(2)(E)(i) states that an alien who is convicted of a crime of domestic violence; stalking; or child abuse, neglect, or abandonment is deportable. The Board found that a Louisiana statute that prohibits and criminalizes, among other things, the mere offensive touching as a battery of domestic partners but which does not require “physical force” as federally defined is not categorically a crime of violence, and cannot be a conviction of a crime of domestic violence under § 237(a)(2)(E)(i).

In Matter of B-Z-R-, 28 I&N Dec. 563, decided on May 9, the Attorney General held that the mental health of an individual who has been convicted of a particularly serious crime may be considered when determining if that individual constitutes a danger to the community. The INA states that individuals who are found to be a danger to the community after being convicted of a particularly serious crime are ineligible for asylum or withholding of removal. Matter of B-Z-R- overruled the Board’s prior decision in Matter of G-G-S, 26 I&N Dec. 339 (BIA 2014), which had held that a person’s mental health is not a factor to be considered in the particularly serious crime analysis.