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BIA Affirms IJ Grant on Certification on Crime, Overbroad Statute, and Second Circuit Changed Law
by Alan Lee, Esq.
Dear Editor,
I am pleased to attach an unpublished August 1, 2022, BIA decision on certification affirming the favorable decision that we received terminating proceedings against a permanent resident with a Virginia burglarious tools possession conviction. The issue was whether the respondent had to show that someone was actually prosecuted under the facially overbroad Virginia statute for the type of conduct which was not an immigration crime under the federal definition.
Following the immigration judge’s decision not to terminate on the basis that we had not shown that someone could actually be prosecuted under the statute for a non-immigration crime, we again moved to terminate on the basis of changed law in New York that such a showing was not required. Matthews v. Barr, 927 F3d 606 (2d Cir. 2019). The IJ agreed and terminated proceedings, but certified her decision to the Board.
The Board concluded that “the respondent was not required to make the showing, as the statute was facially overbroad and this case is under the jurisdiction of the United States Court of Appeals for the Second Circuit.” It further said that “The Second Circuit has interpreted the realistic probability test as being inapplicable if a state statute is facially overbroad” and “as the Immigration Judge correctly recognized, the Second Circuit has extended its case law to depart from the Board’s requirement of prosecution to satisfy the realistic probability test.”
Hopefully, this case will be helpful to the readers.
About The Author
Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2022), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.
