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.
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