Latest BIA decisions summaries
The Board of Immigration Appeals- the BIA Decision Controlled Substance – the decision is Matter of LAGUERRE, 28 I&N Dec. 437 (BIA 2022) on on NJ controlled substance.
Major issue on appeal relative to NJ controlled substance
The problem Mr. Laguerre faced was that he was removable under the law “relating to a controlled substance (as defined in Section 102 (21 U.S.C. 802)). First, his attorney argued that that DHS cannot prove that the crime was one of a controlled substance.
How does BIA Decision Controlled Substance determine if a drug-offense makes one removable?
Then, though BIA Decision Controlled Substance uses the categorical approach to figure out whether the elements of his New Jersey statute of conviction match those of the generic definition of a drug offense in section 237(a)(2)(B)(i).
The identity of the “controlled dangerous substance” is an element of the crime of possession under section 2C:35-10(a)(1) of the New Jersey Statutes Annotated. Therefore, the statute is divisible with respect to the specific substance possession. And the court can examine the record under the modified categorical approach, if it is a drug under Federal law.
So, if the statute is divisible, the court may employ a modified categorical approach. Because that approach permits the court to examine the record to determine “what crime, with what elements” was the conviction. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).
What is another test that the Court uses?
The parties do not dispute the Immigration Judge’s determination that the New Jersey schedules include dextrorphan, while the Federal schedules do not. So there is a mismatch between the controlled substances in the New Jersey and Federal schedules. Therefore, the dispositive issue was if the identity of the substance is an “element,” rendering the statute divisible and susceptible to a modified categorical inquiry.