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Using and Defending the Categorical Approach

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.

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 StatesMellouli v. LynchMoncrieffe v. HolderDescamps v. United StatesMatter of Chairez-Castrejon (I), the “realistic probability” standard, and the noncitizen’s burden of proof where conviction records are ambiguous.

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.

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”)