A.G. to Review Divisibility; Chairez-Castrejon and Sama Stayed: 26 I&N Dec. 686 (A.G. 2015)

Matter of Martin CHAIREZ-Castrejon, Matter of Vera SAMA,  26 I&N Dec. 686 (A.G. 2015)

"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?"