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: