Understanding the modified categorical approach

Few areas of crimmigration law are as confounding to novices and seasoned practitioners as the method by which courts determine whether a particular crime exposes a migrant to removal. Known as the categorical approach, cases expounding on this analytical method’s centrality have become a mainstay of Supreme Court decisions in recent years. Earlier this month, the Court reiterated its emphasis on the categorical approach in Mellouli v. Lynch (for analyses of that decision, see here, here, here, here, here, here). As if to illustrate how maddening categorical approach analyses can be, the very [...]

Pushing Europe to protect migrant workers

By Alan Desmond As we approach the 25th anniversary of the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), Migrants Matter, a group of postgraduate students and young professionals concerned with the treatment of migrants in Europe, is calling on Dimitris Avramopoulos, the EU Commissioner for Migration, Home Affairs and Citizenship, to support ratification of the ICMW by EU Member States. Adopted by the UN General Assembly on 18 December 1990, the ICMW is one of the ten core international human rights instruments. [...]

Taking the Fight to the State Legislature: Small Changes, Big Impacts for Non-Citizens

By Michael Mehr In California, as in many other states, a defendant charged with a minor drug offense, is offered Deferred Entry of Judgment: plead guilty to the offense, complete a diversion program, and upon successful completion criminal charges are dismissed. The defendant is told the “arrest will be deemed never to have occurred” and that the plea can never be used to deny her any “benefit.” But the reality is far different: under federal immigration law, a plea of guilty paired with any form of restraint or punishment, including completion of a diversion program, is a “conviction” for [...]

Proceduralizing detention through evidence-based risk assessments

Immigration imprisonment is on the rise everywhere. As with many fast growing industries, its expansion is often chaotic and seemingly rudderless. Evidence-based risk assessments offer the potential to discipline the decision to detain—to provide a reasoned anchor that guides the state’s decision to deprive a person of her liberty. In making detention decisions more regimented, I’m concerned that we might simply be adding procedure without altering the nature and extent of confinement. More importantly, I fear that proceduralizing detention through ostensibly objective criteria masks the need [...]

BIA flouts Supreme Court’s consistent categorical approach analysis

Just one day after the U.S. Supreme Court issued its latest decision explaining how the categorical approach of statutory analysis applies to deportation cases, the Board of Immigration Appeals issued a decision ignoring everything the Court said. In Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA June 2, 2015), the BIA held that immigration judges must consider the “ordinary case” when determining whether a conviction constitutes a crime of violence aggravated felony under 18 U.S.C. § 16(b), the second of two alternative definitions of “crime of violence.” This case involved an LPR [...]

Litigating Mellouli: Adventures in Team Whack-a-Mole

By Kate Evans In Mellouli v. Lynch, the Supreme Court reached what may now look like an inevitable result when, for the fourth time in a decade, it rejected an attempt by the government to deport a lawful permanent resident for a minor drug offense using the categorical approach. But the case did not start out that way. Rather, the straightforward requirement that “the Government must connect an element of the alien’s conviction” to a federally controlled substance, slip op. at 14, came only as the result of a far-reaching collaboration to winnow down the case. Editor's Note: This essay is [...]

Mellouli in the context of the modern deportation system

By Jason Cade On Wednesday, Jennifer Koh noted that Mellouli v. Lynch, 575 U.S. --- (2015), marks the fourth time in ten years that the federal government has zealously litigated the application of harsh removal provisions to lawfully present noncitizens with minor drug convictions all the way to the Supreme Court, only to lose. For my contribution to this online symposium, I’d like to put the Mellouli decision into an even broader context. My thoughts here draw on ideas that I am developing in a forthcoming article, entitled Enforcing Immigration Equity, to be published later this year in [...]

High Court Finds Government a Four-Time Loser

By Sejal Zota In Mellouli v. Lynch, No. 13-1034, slip op. (June 1, 2015), the Supreme Court returned a measure of sanity to the government’s deportation rules. For the fourth time in a decade the Supreme Court overwhelmingly rejected the government’s use of the nation's immigration laws to deport an individual with a minor drug conviction. Unfortunately, thousands of families were already separated from their spouses, children, parents, and siblings by the time our high court could intervene. Editor's Note: This essay is part of an online symposium about Mellouli on crImmigration.com [...]