The BLOG of the Immigration Law Office of Ben Ezra Eran P.A.
Attorney Eran Ben Ezra
Top Immigration Lawyer Passed the bar exams in the top 10% in the USA at all times!.Handled thousands of cases personally .Close to 100% success rate.
CALL US NOW: 1-800-600-2412 or +1-305-912-7777
Our Address: 1058 N.Miami Beach Blvd,North Miami Beach,FL,33162
Thursday, May 17, 2018
How to Use the Categorical Approach Now1
Katherine Brady, ILRC
With a few exceptions, immigration authorities must use the “categorical approach” to
determine whether a criminal conviction triggers a ground of removal. Expert use of the
categorical approach may be the most important defense strategy available to immigrants
convicted of crimes.
This is especially true now that the Supreme Court again has addressed how the analysis
must be applied, in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States,
133 S. Ct. 2276 (2013). These decisions effectively overrule a lot of past precedent, to the
benefit of immigrants. In 2014 the Board of Immigration Appeals (BIA) adopted the Supreme
Court’s analysis and withdrew its own conflicting precedent. Matter of Chairez-Castrejon, 26
I&N Dec. 349 (BIA 2014), withdrawing Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012).
If you represent an immigrant convicted of a crime and do not understand how to use the
categorical approach in light of recent decisions, you may be doing your client a terrible
disservice. Relying on older precedent, you may think that the conviction has adverse
immigration consequences, when under recent precedent it should have no consequences, or at
least less serious ones. Likewise, immigration judges who do not correctly apply the categorical
approach commit reversible error. See Matter of Chairez-Castrejon, supra at 358.
The purpose of this article is to provide a step-by-step guide on how to use the categorical
approach under current law. Part I provides a concise outline of the analysis, in five steps. Part
II discusses these steps in more detail and with examples. Part III provides more examples of
formerly removable offenses that now should be held immigration-neutral. Part IV discusses in
what contexts the full categorical approach does and does not apply. In particular, at this writing
the full categorical approach applies to moral turpitude determinations in some circuits but not
others, and applies to determining whether a crime is an aggravated felony except for a few cases
where the circumstance-specific inquiry applies. See Part IV.
This article is more of a how-to guide than an analysis of the reasoning of the key cases
and their implications. For a more in-depth discussion of Moncrieffe v. Holder, Descamps v.
United States, and Matter of Chairez-Castrejon, see Practice Advisories available online.2
As always, how much and whether to rely upon new arguments depends on context.
Advocates representing non citizens in removal proceedings can advance these arguments.
Advocates considering whether to file an affirmative application, in cases where this would
expose a potentially removable person to authorities, should consider the chances that the
argument might be rejected while the application is pending. Criminal defenders always should
try to take the most conservative option of pleading specifically to a “good” offense, even if the
statute really should be considered not divisible.
read the full article here: https://www.ilrc.org/sites/default/files/resources/how_to_use_the_categorical_approach_template_1.pdf