Matter of Arinda GARZA-OLIVARES (agency decision, May 5, 2016)

Plain-English summary

The Board reviewed the Department of Homeland Security's appeal from an Immigration Judge's termination of removal proceedings against a lawful permanent resident of Mexico. The respondent had been convicted under 18 U.S.C. § 3146 for failing to appear before a court. The Board held that the categorical approach applies to whether the offense relates to a generic failure to appear before a court, while a circumstance-specific approach applies to whether the failure was pursuant to a court order, involved a felony charge, and involved a charge punishable by at least two years' imprisonment. It sustained DHS's appeal, reinstated the proceedings, and remanded the record for the Immigration Judge to assess the remaining conditions and consider any available relief.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1101(a)(43)(T) and 1227(a)(2)(A)(iii); 18 U.S.C. §§ 3141, 3142, 3146(a)(1), and 3146(b)(1)(A)(ii); 8 C.F.R. §§ 1003.1(d)(3)(i), 1003.1(d)(3)(ii), and 1003.1(d)(3)(iv)
• Outcome: The appeal was sustained, the Immigration Judge's decision was vacated, the removal proceedings were reinstated, and the record was remanded for further proceedings.
• Key point: The categorical approach covers the generic failure-to-appear and before-a-court components, while the circumstance-specific approach covers the court-order, felony-charge, and two-year-punishment conditions.

Full text (BIA official public release)

Cite as 26 I&N Dec. 736 (BIA 2016)                                Interim Decision #3861




         Matter of Arinda GARZA-OLIVARES, Respondent
                                Decided May 5, 2016
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

  In assessing whether an offense qualifies as an aggravated felony under section
101(a)(43)(T) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(T) (2012),
the categorical approach applies to decide if the offense relates to an alien’s failure to
appear before a court, but the circumstance-specific approach applies to determine if the
failure to appear was (1) pursuant to a court order (2) to answer to or dispose of a charge
of a felony (3) for which a sentence of 2 years’ imprisonment or more may be imposed.
FOR RESPONDENT: Diana Rashid, Esquire, Chicago, Illinois
FOR THE DEPARTMENT OF HOMELAND SECURITY: Daniel Rah, Assistant Chief
Counsel
BEFORE: Board Panel: PAULEY and WENDTLAND, Board Members; O’HERRON,
Temporary Board Member.
PAULEY, Board Member:


   In a decision dated November 19, 2014, an Immigration Judge granted
the respondent’s motion to terminate the removal proceedings against her.
The Department of Homeland Security (“DHS”) has appealed from that
decision. The respondent opposes the appeal. The DHS’s appeal will be
sustained, the proceedings will be reinstated, and the record will be
remanded to the Immigration Judge.

             I. FACTUAL AND PROCEDURAL HISTORY
    The respondent is a native and citizen of Mexico. The record reflects
that she entered the United States without inspection in 1976 and adjusted
her status to that of a lawful permanent resident on September 19, 1991.
The respondent was convicted on August 5, 2014, of failing to appear in
violation of 18 U.S.C. §§ 3146(a)(1) and (b)(1)(A)(ii) (2012).
    Based on the respondent’s conviction, the DHS initiated proceedings,
charging that she is removable under section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as
an alien convicted of an aggravated felony under section 101(a)(43)(T) of
the Act, 8 U.S.C. § 1101(a)(43)(T) (2012). The respondent admitted the

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factual allegation that she was convicted under 18 U.S.C. §§ 3146(a)(1) and
(b)(1)(A)(ii), but she denied the charge of removability. The Immigration
Judge determined that the respondent’s offense is not an aggravated felony
and terminated the removal proceedings.

                                     II. ISSUE
    The issue on appeal is whether the respondent’s failure to appear before
a court in violation of 18 U.S.C. §§ 3146(a)(1) and (b)(1)(A)(ii) is an
“aggravated felony” under section 101(a)(43)(T) of the Act. We review
this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016).

                      III. STATUTORY PROVISIONS
   Section 101(a)(43)(T) of the Act includes within the definition of an
aggravated felony

     an offense relating to a failure to appear before a court pursuant to a court order to
     answer to or dispose of a charge of a felony for which a sentence of 2 years’
     imprisonment or more may be imposed . . . .

   In pertinent part, 18 U.S.C. § 3146 defines the offense of failure to
appear as follows:

       (a) OFFENSE.—Whoever, having been released under this chapter knowingly—
         (1) fails to appear before a court as required by the conditions of release; or
         (2) fails to surrender for service of sentence pursuant to a court order;
     shall be punished as provided in subsection (b) of this section.
       (b) PUNISHMENT.—(1) The punishment for an offense under this section is—
            (A) if the person was released in connection with a charge of, or while
       awaiting sentence, surrender for service of sentence, or appeal or certiorari after
       conviction for—
              (i) an offense punishable by death, life imprisonment, or imprisonment for
            a term of 15 years or more, a fine under this title or imprisonment for not
            more than ten years, or both;
              (ii) an offense punishable by imprisonment for a term of five years or more,
            a fine under this title or imprisonment for not more than five years, or both;
              (iii) any other felony, a fine under this title or imprisonment for not more
            than two years, or both; or
              (iv) a misdemeanor, a fine under this title or imprisonment for not more
            than one year, or both; and
            (B) if the person was released for appearance as a material witness, a fine
       under this chapter or imprisonment for not more than one year, or both.

(Emphasis added.)

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                               IV. ANALYSIS
    In holding that the respondent is not removable, the Immigration Judge
concluded that 18 U.S.C. § 3146(a)(1) is not a categorical match to section
101(a)(43)(T) of the Act. She applied a strict categorical approach to
determine that the elements of § 3146(a)(1) are broader than section
101(a)(43)(T) because she concluded that some components of the generic
statute are missing, specifically, the requirements that the respondent’s
failure to appear be “pursuant to a court order” and “to dispose of a
charge.” In support of her conclusion, the Immigration Judge relied on
Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. 2008), the only
reported decision on this issue, in which the United States Court of Appeals
for the Ninth Circuit applied the categorical approach to all of the
components of section 101(a)(43)(T).
    The DHS argues that the Immigration Judge erred in applying the
categorical approach because the limiting language of section 101(a)(43)(T)
refers to the particular circumstances relating to an offender’s commission
of a generic “failure to appear” crime on a particular occasion, rather than
to the elements of such an offense. The DHS relies on Nijhawan v. Holder,
557 U.S. 29 (2009), in reasoning that a “circumstance-specific” approach is
the appropriate analysis regarding section 101(a)(43)(T). Having surveyed
the “bail jumping” or “failure to appear” laws of 50 States, the DHS
determined that only 3 statutes would define a categorical aggravated
felony under a strict categorical approach. Thus, it asserts that Congress
would not have “intended [section 101(a)(43)(T)] to apply in so limited and
so haphazard a manner.” Id. at 40.
    In response, the respondent argues that the Immigration Judge correctly
determined that her “failure to appear” offense is not categorically an
aggravated felony under section 101(a)(43)(T) of the Act and that there is
no authority to support the application of the circumstance-specific
approach. For the following reasons, although we conclude that the
categorical approach applies to some aspects of section 101(a)(43)(T), we
agree with the DHS that the circumstance-specific approach applies to
several others.
    It is well established that the applicability of the categorical approach
depends on the language of the particular immigration provision at issue.
Where the Act provides for the removal of an individual convicted of a
“generic crime,” it is undisputed that the DHS must establish that the
elements of the individual’s offense categorically correspond to the
elements of the pertinent generic crime. See Moncrieffe v. Holder, 133
S. Ct. 1678, 1684, 1691 (2013); Taylor v. United States, 495 U.S. 575,
601−02 (1990). However, both we and the courts have also recognized that

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the categorical approach is inapplicable in removal proceedings when the
immigration provision calls for an examination of the “particular
circumstances in which an offender committed the crime on a particular
occasion.” Nijhawan v. Holder, 557 U.S. at 38; see also Matter of
Dominguez-Rodriguez, 26 I&N Dec. 408, 410−12 (BIA 2014) (collecting
cases); Matter of Davey, 26 I&N Dec. 37, 39 (BIA 2012); Matter of
Babaisakov, 24 I&N Dec. 306, 317−18 (BIA 2007). In such cases, it is
appropriate to apply a circumstance-specific approach. 1 We must therefore
determine whether section 101(a)(43)(T) of the Act should be analyzed
pursuant to the categorical approach or the circumstance-specific approach.
In resolving this question, we look to the natural meaning of the statutory
language. Matter of Dominguez-Rodriguez, 26 I&N Dec. at 410−12.
    To qualify as an aggravated felony under section 101(a)(43)(T) of the
Act, an offense must “relate” to a generic “failure to appear” crime that
encompasses five discrete components. See Familia Rosario v. Holder,
655 F.3d 739, 747 (7th Cir. 2011) (stating that the phrase “‘relating to’ is
intended to have a broadening effect” (quoting Desai v. Mukasey, 520 F.3d
762, 764 (7th Cir. 2008))); Matter of Beltran, 20 I&N Dec. 521, 526 (BIA
1992). The offense must involve (1) a failure to appear (2) before a court,
(3) pursuant to a court order, (4) to answer to or dispose of a charge of a
felony, (5) where the felony was one for which a sentence of 2 years’
imprisonment or more may be imposed. See Renteria-Morales v. Mukasey,
551 F.3d at 1083.
    We conclude that the initial components of section 101(a)(43)(T),
referencing a “failure to appear” that occurs “before a court,” require a
categorical inquiry because—like the “fraud or deceit” component of
section 101(a)(43)(M)(i) addressed in Nijhawan—they refer to common
elements of a generic “failure to appear” crime. Therefore, it is appropriate
that proof of these facts be demonstrated by reference to the statutory
elements of a criminal offense, rather than by means of evidence beyond
the record of conviction.
    However, the three remaining components, regarding whether the
failure to appear in court was (1) pursuant to a court order (2) to answer to
or dispose of a felony charge (3) for which a sentence of 2 years’
imprisonment or more may be imposed, do not refer to formal elements of
generic “failure to appear” crimes. Instead, they are limiting components

1
   In Nijhawan, the Supreme Court reviewed the fraud and deceit provisions of the
aggravated felony definition at section 101(a)(43)(M)(i) of the Act but also noted other
subparagraphs of the statute to which the circumstance-specific approach would apply.
557 U.S. at 37−38. However, it expressed no view on whether section 101(a)(43)(T) was
subject to a categorical or circumstance-specific inquiry.


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that refer to specific “aggravating” offense characteristics. That is, they
involve the defiance of a court order (as opposed to a police summons)
regarding a felony charge that is serious enough to be punishable by at least
2 years of imprisonment (rather than a misdemeanor). See Nijhawan
v. Holder, 557 U.S. at 38−39. The inclusion of these narrowing factors
serves to underscore the seriousness of the crime that Congress sought to
address and demonstrates its effort to ensure that only such offenses will
qualify as “aggravated” felonies.
    As the DHS points out, to apply a categorical approach to those
components would drastically circumscribe the reach of section
101(a)(43)(T) because very few States have “failure to appear” laws that
would categorically match its limiting requirements. 2 In addition, we
observe that § 3146, the only Federal “failure to appear” statute, is not a
categorical match to all the components of section 101(a)(43)(T) of the Act.
We do not believe that Congress intended section 101(a)(43)(T) to have
such a narrow reach. See Nijhawan v. Holder, 557 U.S. at 39−40 (finding
that if the categorical approach applied to the requirement of section
101(a)(43)(M)(i) that the offense caused a loss of $10,000 or more, only
eight States would have qualifying statutes); cf. United States v. Hayes,
555 U.S. 415, 427 (2009) (finding it unlikely that Congress intended to
make the existence of a domestic relationship a required element of
a “misdemeanor crime of domestic violence” because only a few
statutes included such an element). We therefore conclude that the
circumstance-specific approach is the appropriate inquiry for assessing the
limiting components of section 101(a)(43)(T), that is, for determining
whether the respondent’s failure to appear before a court was (1) pursuant
to a court order (2) to answer to or dispose of a felony charge (3) for which
a sentence of 2 years’ imprisonment or more may be imposed.
    The respondent disagrees, arguing that we should follow the Ninth
Circuit’s holding in Renteria-Morales v. Mukasey, 551 F.3d 1076.
However, the Ninth Circuit’s opinion in that case predated Nijhawan and
Hayes, as well as our decisions in Matter of Dominguez-Rodriguez and
Matter of Davey, and the applicability of the circumstance-specific
approach was not specifically decided by the court.
    Significantly, the facts in that case are also distinguishable. The Ninth
Circuit held that a failure to appear in violation of § 3146 did not
categorically qualify as an aggravated felony under section 101(a)(43)(T)
2
   We conducted our own independent review of the States’ “failure to appear” statutes
and agree with the DHS that the instances in which there could be a categorical match to
the requirements of section 101(a)(43)(T) are very limited. However, we do not
necessarily subscribe to the entirety of the DHS’s survey findings.


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because a defendant could have failed to appear in connection with a
misdemeanor pursuant to § 3146(b)(1)(A)(iv) or as a material witness under
§ 3146(b)(1)(B), rather than to answer to a felony charge. However, the
judgment of conviction in that case only showed that the alien was
convicted of violating § 3146, without providing any further specificity
regarding the particular provisions of that section that the alien was
convicted of violating. The respondent, on the other hand, has admitted
that she was convicted under 18 U.S.C. § 3146(a)(1) and that her
punishment was pursuant to § 3146(b)(1)(A)(ii), which would eliminate the
possibility that she failed to appear in connection with a misdemeanor or
as a material witness. 3 Cf. Renteria-Morales v. Mukasey, 551 F.3d at
1084−85. For these reasons, we are unpersuaded that the Ninth Circuit’s
ruling in Renteria-Morales should be applied in the respondent’s case.
    In applying the framework that we have set forth, we agree with the
Immigration Judge that the elements of “failure to appear” and “before a
court” in § 3146(a)(1) correspond to the generic failure to appear crime
in section 101(a)(43)(T) of the Act. Although we hold that the
circumstance-specific approach should generally be applied to the three
qualifying components of section 101(a)(43)(T), in this case, as a matter of
law, we can resolve the question whether the respondent’s failure to appear
in violation of § 3146(a)(1) was “pursuant to a court order.”
    According to § 3146(a)(1), “Whoever, having been released under this
chapter knowingly . . . fails to appear before a court as required by the
conditions of release” is punishable. (Emphasis added.) This statute is
contained in chapter 207 of title 18, which relates to the release and
detention of defendants pending Federal judicial proceedings. Since the
provisions in chapter 207 do not permit the release, on recognizance or
otherwise, of a defendant in a Federal criminal case other than by court
order, any failure to appear “as required by the conditions of release” would
necessarily be “pursuant to a court order.” See 18 U.S.C. §§ 3141, 3142
(2012) (providing for the release and detention authority of Federal judicial
officers). See generally United States v. Lechuga, 975 F.2d 397, 400 (7th
Cir. 1992) (stating that to establish a violation under § 3146(a)(1), the
Government must prove that the defendant was released on bail and
willfully failed, as required, to appear in court). In this regard, we agree
with the dissenting opinion in Renteria-Morales v. Mukasey, 551 F.3d at
1090−91 (Tallman, J., dissenting) (stating that the petitioner’s release was
necessarily pursuant to a Federal judge’s exercise of authority under § 3142
3
   The respondent admitted the factual allegation in the notice to appear that she was
convicted under §§ 3146(a)(1) and (b)(1)(A)(ii), which counsel has also acknowledged in
her brief on appeal.


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to “order” her release). Consequently, we conclude that the respondent’s
failure to appear in violation of § 3146(a)(1) was “pursuant to a court
order.”
    We could likely resolve the question of the remaining two components
under the circumstance-specific approach based on official court documents
in the record. See 8 C.F.R. § 1003.1(d)(3)(iv) (permitting the Board to take
administrative notice of the “contents of official documents”). However,
because we find that a remand is appropriate to assess whether the
respondent is eligible for any relief from removal, we will also remand the
record for the Immigration Judge to apply the circumstance-specific
approach to those components in the first instance. On remand, therefore,
the Immigration Judge should consider whether the respondent’s failure to
appear in court in violation of §§ 3146(a)(1) and (b)(1)(A)(ii) was to
answer to or dispose of a felony charge for which a sentence of 2 years’
imprisonment or more may be imposed. The DHS has submitted the
respondent’s plea agreement, charging document, judgment, and sentencing
memorandum, all of which the Immigration Judge should consider, to the
extent that they are found to be reliable. 4
    Accordingly, the DHS’s appeal will be sustained, and the record will be
remanded to the Immigration Judge for further proceedings consistent with
this decision.
    ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
removal proceedings are reinstated.
    FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.




4
   We note that in applying the circumstance-specific approach, evidence beyond that
which would be admissible under the categorical approach may be considered. See
Nijhawan v. Holder, 557 U.S. at 41−43. This may include the documents in a record of
conviction that can be considered under the modified categorical approach, as well as any
other evidence that is otherwise admissible in removal proceedings, including witness
testimony and “the testimonial admissions of the respondent made during the removal
hearing.” Matter of Babaisakov, 24 I&N Dec. at 320−21. As we noted in Babaisakov,
however, such evidence may be considered only if it is “reliable.” Id.


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