CA3 on Categorical Approach: Rosa v. Atty. Gen.

Rosa v. Atty. Gen.

"This appeal asks us to address an issue of first impression under the Immigration and Nationality Act (the “Act”) that carries implications beyond immigration law: whether the categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, permits comparison with any federal crime, or only the “most similar” one. That issue arises in noncitizen Willy de Jesus Rosa’s petition for review from the determination of the Board of Immigration Appeals that his prior New Jersey convictions for possession and sale of a controlled substance within 1,000 feet of a school constitute aggravated felonies under the Act. Specifically, he challenges the Board’s conclusion that his prior convictions could be compared not only to the federal statute proscribing distribution near a school but also to the federal statute prohibiting distribution generally. We agree that the Board erred in that conclusion and will grant the petition for review and remand for further proceedings."

[Hats off to Raymond P. D’Uva, I. Alexandra Miron, Derek A. Decosmo and Eric M. Mark!]