Matter of Martin CHAIREZ-Castrejon and Matter of Vera SAMA (agency decision, October 30, 2015)

Plain-English summary

The Attorney General referred two Board of Immigration Appeals cases for review of how to determine whether a criminal statute is divisible under Descamps v. United States. The referral order asks whether a statute is divisible for the modified categorical approach only when applicable law requires juror unanimity about the version of the offense committed. It automatically stays the Board decisions and states that the portions addressing the referred issue are not precedential or binding while review is pending. The order also sets briefing deadlines and procedures for the parties and interested amici.

Decision snapshot

• Cited authorities: 8 C.F.R. § 1003.1(h)(1)(i)
• Outcome: The two cases were referred to the Attorney General, the Board decisions were stayed, and briefing was ordered.
• Key point: The Attorney General’s referral temporarily removes the specified Board decisions from precedential and binding use while the divisibility issue is reviewed.

Full text (BIA official public release)

Cite as 26 I&N Dec. 686 (A.G. 2015) Interim Decision #3852

     Matter of Martin CHAIREZ-Castrejon, Respondent
             Matter of Vera SAMA, Respondent
            Decided by Attorney General October 30, 2015

                        U.S. Department of Justice
                       Office of the Attorney General

The Attorney General referred the decisions of the Board of Immigration Appeals to herself for review of an issue relating to the application of Descamps v. United States, 133 S. Ct. 2276 (2013), ordering that those cases be stayed and not be regarded as precedential or binding as to the issue under review during the pendency of her review.

              BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(l)(i) (2015), I direct the Board of

Immigration Appeals (“Board”) to refer to me the above-captioned cases for review of its decisions. The Board’s decisions in these matters are automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). During the pendency of my review, the Board’s decisions, or portions thereof, that address the question set out below shall not be regarded as precedential or binding by Immigration Judges or the Board. To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs addressing the following issue:
What is the proper approach for determining “divisibility” within the meaning of
Descamps v. United States, 133 S. Ct. 2276 (2013)? In particular, does Descamps
require that a criminal statute be treated as “divisible” for purposes of the modified
categorical approach only if, under applicable law, jurors must be unanimous as to
the version of the offense committed?

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before December 7, 2015. The parties may submit reply briefs not exceeding 6,000 words on or before January 8, 2016. Interested amici may submit briefs not exceeding 9,000 words on or before December 14, 2015. No amicus may file more than one brief in connection with the two cases I have directed the Board to refer to me today. All filings shall be accompanied by proof of service and shall be submitted electronically to [email protected], and in triplicate to:

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Cite as 26 I&N Dec. 686 (A.G. 2015) Interim Decision #3852

                 United States Department of Justice
                   950 Pennsylvania Avenue, NW
             Office of the Attorney General, Room 5114
                        Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

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