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statutefelonynaturalization
statutefelonynaturalization

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Gertsenshteyn v. Department of Justice

Facts

Petitioner Boris Izraylovich Gertsenshteyn is a citizen of the Ukraine who entered the United States as a refugee and subsequently adjusted his status to that of a lawful permanent resident. On July 30, 2001, he was convicted of violating and conspiring to violate 18 U.S.C. 2422(a), a statute prohibiting the enticing of individuals to travel in interstate or foreign commerce to engage in prostitution. The Immigration and Naturalization Service (INS) placed him in removal proceedings on December 17, 2002, charging him with having been convicted of an aggravated felony under 8 U.S.C. 1101(a)(43)(K)(ii).

Petitioner Boris Izraylovich Gertsenshteyn is a citizen of the Ukraine who entered the United States as a refugee and subsequently adjusted his status to that of a lawful permanent resident. On July 30, 2001, he was convicted of violating and conspiring to violate 18 U.S.C. 2422(a), a statute prohibiting the enticing of individuals to travel in interstate or foreign commerce to engage in prostitution. The Immigration and Naturalization Service (INS) placed him in removal proceedings on December 17, 2002, charging him with having been convicted of an aggravated felony under 8 U.S.C. 1101(a)(43)(K)(ii).

Issue

Whether the BIA properly applied the categorical approach in determining if the alien's conviction constituted an aggravated felony under 8 U.S.C. 1101(a)(43)(K)(ii).

Whether the BIA properly applied the categorical approach in determining if the alien's conviction constituted an aggravated felony under 8 U.S.C. 1101(a)(43)(K)(ii).

Rule

The court adopted a 'categorical approach' to determine whether a crime of conviction fits within the definition of 'aggravated felony' in 1101(a)(43) to render an alien removable under 8 U.S.C.S. 1227(a)(2)(A)(iii).

The court adopted a 'categorical approach' to determine whether a crime of conviction fits within the definition of 'aggravated felony' in 1101(a)(43) to render an alien removable under 8 U.S.C.S. 1227(a)(2)(A)(iii).

Analysis

The court found that the BIA did not follow the categorical approach, as it considered extrinsic factors not necessary to establish the elements of the offense. The BIA's reliance on facts outside the record of conviction, such as whether the alien created a profit for the prostitution ring, was improper. The court emphasized that the BIA failed to provide sufficient justification for departing from the established categorical approach.

The court found that the BIA did not follow the categorical approach, as it considered extrinsic factors not necessary to establish the elements of the offense. The BIA's reliance on facts outside the record of conviction, such as whether the alien created a profit for the prostitution ring, was improper. The court emphasized that the BIA failed to provide sufficient justification for departing from the established categorical approach.

Conclusion

The court granted the petition for review, vacated the BIA's decision, and remanded the case for the BIA to conduct the proper analysis under the categorical approach.

The court granted the petition for review, vacated the BIA's decision, and remanded the case for the BIA to conduct the proper analysis under the categorical approach.

Who won?

Petitioner prevailed because the court found that the BIA did not adhere to the categorical approach in its analysis, necessitating a remand for proper evaluation.

Petitioner prevailed because the court found that the BIA did not adhere to the categorical approach in its analysis, necessitating a remand for proper evaluation.

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