Giron-Molina v. Garland, No. 22-6243 (2d Cir. 2023)
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Petitioner sought a review of a decision of the Board of Immigration Appeals (“BIA”) dismissing her appeal, ordering her removed, and denying her application for cancellation of removal. The BIA ordered that she be removed under 8 U.S.C. Section 1227(a)(2)(A)(i)(I) for having been convicted of a crime involving moral turpitude (“CIMT”). Specifically, the BIA and Immigration Judge (“IJ”) determined that a conviction under Arkansas Code Annotated (“ACA”) Section 5-60-101 is categorically a CIMT.
The Second Circuit reversed. The court concluded that a conviction under ACA Section 5- 60-101 is not categorically a CIMT because the statute criminalizes conduct that is not “inherently base, vile, or depraved.” The court explained that the BIA did not conduct an elements-based categorical inquiry. Instead, it applied an inapposite “realistic probability” test. That test “operates as a backstop when a statute has indeterminate reach, and where minimum conduct analysis invites improbable hypotheticals.” It applies only when there is a match between the state statute and federal standard, but a petitioner posits imaginative scenarios in which the state statute would be violated in such a way that does not meet the requirements of a CIMT.
The court issued a subsequent related opinion or order on November 14, 2023.
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