As published in the Immigration Daily on August 16, 2022
We are pleased to report that in an unpublished August 1, 2022, decision, the BIA affirmed on certification the favorable decision that we received from the immigration court in one of our cases terminating proceedings against a permanent resident with a Virginia burglarious tools possession conviction. The issue was whether our client 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 initial 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.”
Although unpublished (not a precedent decision), the decision is important in understanding the Second Circuit (which has jurisdiction over cases in New York, Connecticut and Vermont) interpretation of law on this point and the Board’s acceptance of the Second Circuit’s stance in states under the jurisdiction of the Circuit Court.