Second Circuit finds that NY Bail Jumping is an Aggravated Felony

The Second Circuit has determined that a New York conviction for bail jumping is a failure to appear related aggravated felony.  

"To determine whether a conviction for failure to appear is an aggravated felony, we must consider whether the statute of conviction satisfies the elements listed in § 1101(a)(43)(T), which requires (1) a “failure to appear” (2) “before a court” (3) “pursuant to a court order” (4) “to answer to or dispose of a charge of a felony” (5) “for which a sentence of 2 years’ imprisonment or more may be imposed.  Perez’s conviction, under N.Y.P.L. § 215.57, satisfies the first four elements of § 1101(a)(43)(T) on its face.     The fifth element is also satisfied.    Considering the statutory scheme as a whole, we conclude that subsection (T)’s sentence requirement relates to the failure to appear and not, as the government suggests, to the sentence imposed on a petitioner’s underlying felony."  Because NY bail jumping can be punished by 7 years of incarceration, it qualifies as an aggravated felony.

The full text of Perez Henriquez v. Sessions can be found here: 

http://www.ca2.uscourts.gov/decisions/isysquery/092aee45-a488-46dc-ab31-64b70ff44892/13/doc/15-3285_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/092aee45-a488-46dc-ab31-64b70ff44892/13/hilite/

Board of Immigration Appeals Construes Failure to Appear Aggravated Felony Ground

Section 101(a)(43)(T) of the Immigration and Nationality Act (INA) defines an aggravated felony to include "an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed."  The Board of Immigration Appeals (Board) determined that the categorical approach applies to the determination as to whether a conviction relates to a failure to appear, but the circumstance-specific approach applies to the determination as to whether the individual failed to appear pursuant to a court order, in relation to a felony charge, and that the charge carried a potential sentence of 2 or more years.  "As the DHS points out, to apply a categorical approach to those components would drastically circumscribe the reach of section 101(a)(43)(T) because very few States have 'failure to appear' laws that would categorically match its limiting requirements. 2 In addition, we observe that § 3146, the only Federal 'failure to appear' statute, is not a categorical match to all the components of section 101(a)(43)(T) of the Act. We do not believe that Congress intended section 101(a)(43)(T) to have such a narrow reach. 

The Board did note the existence of one published Ninth Circuit decision applying the categorical approach to all parts of section 101(a)(43)(T) of the INA: Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. 2008).  Further guidance will be required from the Ninth Circuit before practitioners can know with certainty if the circumstance-specific approach applies to section 101(a)(43)(T) of the INA within that circuit.

The full text of Matter of Garza-Olivares can be found here: https://www.justice.gov/eoir/file/849056/download