The categorical approach, used to determine whether a prior offense triggers an immigration consequence under federal law, is employed in immigration adjudications to ensure that noncitizens will not be deported unless they were actually convicted of the crimes to which Congress intended to tie deportation consequences. Under the categorical approach, only the legal elements of the prior conviction are considered; the underlying facts of the case — the noncitizen’s actual conduct — are irrelevant. The approach presumes that the conviction rested upon the least of the acts criminalized under the specific criminal statute. If those acts match the generic federal immigration offense, then the conduct is deportable; otherwise, it is not.
Created by the federal courts more than a century ago, the categorical approach applies to nearly every criminal provision of the immigration laws, including controlled substance offenses, crimes involving moral turpitude (CIMTs), firearms offenses, prostitution offenses, “particularly serious crimes” (for asylum and withholding of removal), and the multiple sub-categories of aggravated felonies. It governs analysis of criminal offenses for purposes of deportability, ineligibility for lawful status and relief from deportation, subjection to mandatory civil detention, and the length of federal sentencing enhancements applied based on prior criminal offenses.
Protecting the categorical approach is central to IDP’s litigation work. Since 1997, we have supported litigants before the U.S. Supreme Court, Courts of Appeals, and Board of Immigration Appeals (BIA). In addition, we regularly produce practice advisories and litigation tools for use by advocates challenging the immigration consequences of criminal convictions before the federal immigration agencies and courts.
In Mathis v. United States (2016), Supreme Court Affirms Strict Application of Categorical Approach in Immigration and Sentencing Cases
On June 23, 2016, the Supreme Court in Mathis v. United States, No. 15-6092 (U.S. June 23, 2016) strongly reaffirmed the application of a strict, elements-based categorical approach for determining when a prior conviction will trigger adverse sentencing or immigration consequences. In doing so, the Court also clarified the limited circumstances under which a criminal statute is deemed “divisible” and subject to a modified categorical approach, thus protecting against the imposition of immigration consequences or sentencing enhancements based on facts never necessarily established in an underlying criminal case. IDP appeared as an amicus curiae before the Court along with allied immigration advocacy organizations and two individual immigrants whose cases have now been resolved favorably by the Court’s decision in Mathis. The Court’s decision is a significant step toward protecting the rights of federal defendants and immigrants facing possible adverse consequences based on prior convictions.
- Practice Alert: In Mathis v. United States, Supreme Court Reaffirms and Bolsters Strict Application of the Categorical Approach (prepared by IDP and NIP-NLG)
- Brief for Petitioner (prepared and submitted by pro bono counsel at Wilmer Cutler Pickering Hale and Dorr LLP and the Federal Public Defender’s Office)
- Brief of the Immigrant Defense Project et al. in Support of Petitioner (prepared and submitted by pro bono counsel at Orrick, Herrington & Sutcliffe LLP)
- Brief of the National Association of Federal Defenders and National Association of Criminal Defense Lawyers in Support of Petitioner (prepared and submitted by the Federal Defenders of San Diego, Inc.)
Current Practice Advisories on the Categorical Approach
In the past several years, the Supreme Court, Circuit Courts of Appeals, and BIA have issued a number of significant decisions on various aspects of the categorical approach. IDP has developed a library of litigation tools interpreting and distilling the significance of these decisions for practitioners. The following seven advisories discuss the Supreme Court’s most recent decisions in Mathis v. United States, Mellouli v. Lynch, Moncrieffe v. Holder, Descamps v. United States, Matter of Chairez-Castrejon (I), the “realistic probability” standard, and the noncitizen’s burden of proof where conviction records are ambiguous.
- Practice Alert: In Mathis v. United States, Supreme Court Reaffirms and Bolsters Strict Application of the Categorical Approach (July 1, 2016, by IDP and NIP-NLG)
- Mellouli v. Lynch: Further Support for a Strict Categorical Approach for Determining Removability under Drug Deportation and Other Conviction-Based Removal Grounds (June 8, 2015, by IDP and NIP-NLG)
- The Realistic Probability Standard: Fighting Government Efforts to Use It to Undermine the Categorical Approach (Nov. 5, 2014, by IDP and NIP-NLG)
- Matter of Chairez-Castrejon I: BIA Applies Moncrieffe and Descamps to Clarify and Modify Its Views on Proper Application of the Categorical Approach (July 31, 2014, by IDP and NIP-NLG)
- Moncrieffe v. Holder: Implications for Drug Charges and Other Issues Involving the Categorical Approach (May 2, 2013, by IDP, NIP-NLG, and AIC)
- Descamps v. United States and the Modified Categorical Approach (July 17, 2013, by IDP and NIP-NLG)
- Criminal Bars to Relief and Burden of Proof Considerations: Model Briefing for Defending Eligibility for LPR Cancellation of Removal Where the Record of Conviction Is Inconclusive (May 4, 2012, by IDP and Stanford Law School Immigrants’ Rights Clinic)
Decisions and Briefs from Recent Key Categorical Approach Cases Decided by the Supreme Court
In Mellouli v. Lynch (2015), Moncrieffe v. Holder (2013), Carachuri-Rosendo v. Holder(2010), and Lopez v. Gonzales (2006), the Supreme Court affirmed and spoke about the requirement for a strict application of the categorical approach in immigration adjudications. IDP appeared as an amicus party and/or coordinated briefing strategies in each of these cases. The decisions and briefs from Moncrieffe, Carachuri-Rosendo, and Lopez can be found in our litigation library. The decision and briefs from Mellouli are useful in current immigrant and criminal defense litigation involving the categorical approach, especially in controlled substance and drug trafficking aggravated felony cases. The briefs filed in Mellouli are available below.
- Decision, Mellouli v. Lynch
- Brief for Petitioner (prepared and submitted by pro bono counsel at Faegre Baker Daniels LLP and the Center for New Americans at the University of Minnesota Law School)
- Brief of Immigration Law Professors (prepared and submitted by pro bono counsel at Washington Square Legal Services at NYU School of Law)
- Brief for the National Association of Criminal Defense Lawyers, Immigrant Defense Project and National Immigration Project of the National Lawyers Guild as Amici Curiae in Support of Petitioner (prepared and submitted by pro bono counsel at Wilmer Cutler Pickering Hale and Dorr LLP)
- Brief of the National Immigrant Justice Center and American Immigration Lawyers Association as Amici Curiae in Support of Petitioner (prepared and submitted by pro bono counsel at McDermott Will & Emery LLP)
Other Significant Supreme Court, Court of Appeals, and Agency Cases Regarding the Categorical Approach
(1) Nijhawan v. Holder, 557 U.S. 29 (2009), applying the categorical approach in a fraud aggravated felony case, but adding a circumstance-specific approach to a limited number of immigration grounds that use the same particular statutory language.
(2) “Crimes involving moral turpitude” (“CIMTs”)