The Second Circuit remanded the removal order in Lanferman to the Board for an opinion on whether (A) a criminal offense must have discrete subsections or clauses to be divisible (thus triggering the modified categorical approach to determining removability or ineligibility for relief from removal) or (B) a criminal offense is divisible regardless of the structure if--based on the elements of the offense--some but not all violations give rise to removability or ineligibility for relief. The Board held that the second broader approach applied.
The decision is entirely academic, though, because the New York menacing statute at issue, N.Y. Penal Law § 120.14(1), is divisible under either approach as to whether it is a deportable firearms offense pursuant to INA 237(a)(2)(C). Section 120.14(1) provides that a person is guilty of menacing if he or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying any one of a series of deadly weapons or instruments, including but not limited to firearms. Since the various weapons are specifically identified in the statute and separated by commas, the offense has discrete clauses that would seem to satisfy the narrower approach. It thus is unclear why the Second Circuit thought a remand was necessary.
Most significant for those of us practicing in the Ninth Circuit is the Board's vague and contradictory endorsement of the Ninth's decision in Aguila Montes de Oca. Lanferman's holding clearly requires that divisibility be determined "based on the elements of the offense." However, the Board also cites Aguila's "necessarily found" analysis to support its holding. The "necessarily found" analysis permits the immigration authorities to use non-elements in determining removability under the modified categorical approach. Thus, per Aguila, a menacing statute that did not have use of a firearm as an element would still constitute a removable offense if a firearm necessarily was used to commit the menacing. If the Board wanted to endorse this approach, though, why does it seem to consciously use the term "element" throughout the Lanferman opinion?? I welcome your thoughts.