a professor and a lawyer who writes about the “categorical approach” in immigration
law, I worry about how this rule is perceived by federal
courts today. The categorical approach, as it’s been applied over the last 100
years, is quite simple: where Congress has tied immigration penalties to what
an individual has been “convicted of,” it’s the conviction that matters, not an
immigration official’s re-litigation of what the person may or may not have
done. It’s a simple and elegant rule that allows an administrative system to
adjudicate these consequences fairly, and as my students, including Jordan Wells and Pierce Suen, have written, in line with constitutional principles and proportionality.
to some, the categorical approach appears to be an overly technical rule, one
that forces courts to close their eyes to the “truth” that noncitizens may have
committed the acts that would make them removable under the law. As a result,
the government has increasingly argued for carve-outs to the categorical
approach, permitting immigration judges to hold special hearings to examine the
“facts” behind a conviction. But does this really get to the truth?
Moncrieffe v. Holder, the Supreme
Court will be addressing this issue in the context of the “drug trafficking
aggravated felony” ground of removal.
This is not the first time the Supreme Court has examined this removal
category. First, in Lopez v. Gonzales, and second, in Carachuri-Rosendo
v. Holder, the Court has repeatedly recognized the importance of the
categorical approach in assessing alleged drug trafficking aggravated
both cases, the government had argued that simple drug possession offenses
should be considered drug trafficking crimes based on how the offenses could
have been prosecuted. In both cases, the Court rejected that position in favor
of a “commonsense” approach. When someone is convicted of a nontrafficking
crime, she cannot be deemed a drug trafficking aggravated felon based on a
hypothetical prosecution that never occurred or factual findings never made by
the criminal tribunal.
Moncrieffe, the government urges the
Court to rule differently because it asserts that people like Mr. Moncrieffe—a
longtime lawful permanent resident arrested for possession of 1.3 grams of marijuana
“with intent to distribute”—should be treated akin to someone convicted under
the federal felony provision of marijuana trafficking. What the government’s
argument ignores is that Mr. Moncrieffe, like so many other individuals who are
arrested for petty marijuana offenses and given fines, community service, or
probation in recognition of the minor nature of the offense, was convicted of
something that by law covers the simple sharing of marijuana.
state law that led to his conviction is the same law that criminalizes an
individual who passes along a marijuana cigarette to a friend or a person who
shares a joint with someone at a party. For the millions of individuals in this
country who have tried marijuana or shared some with a friend, it may be
illegal, but it’s not drug trafficking. Applying the categorical approach, of Lopez and Carachuri-Rosendo
and a century of immigration case law, ensures that immigration adjudicators base
immigration consequences on the actual offense criminalized by a statute, and
not the government’s aggrandizement of what might
have served as the basis for the person’s conviction.
of following the traditional rule, the federal government suggestions that an
immigration official should assume the worst of the conviction—that regardless
of whether Mr. Moncrieffe was sharing marijuana with a friend, the immigration
adjudicator should assume he was selling marijuana for remuneration unless he
proves otherwise. This, the government argues, protects against an overly
technical approach to the issue while still giving Mr. Moncrieffe and others
like him the chance to argue against an overbroad application of the law.
government fails to explain how this approach works in practice. How does an
Immigration Judge decide whether to trust a ten-year-old police report versus
an immigrant’s present day testimony regarding the conduct that led to his
conviction ten years ago? What happens when records are destroyed, as many
states do after a period of time has elapsed? Does an immigration judge make
these decisions similarly in a case where the person is detained, with no access
to a lawyer and limited ability to contact witnesses or seek evidence to prove
his or her case?
what about the thousands of immigration adjudications that take place outside of
an immigration court? How do these fact hearings help the immigrant applying
for asylum out of fear of persecution in her home country, or the green card
holder seeking naturalization to finally become a citizen of the country she
has contributed to for decades?
The initial decisions about eligibility for asylum, citizenship, and
other forms of status are made largely on paper records, with limited, nonadversarial
opportunities to present additional facts to front-line administrators in an
overwhelmed immigration agency. How does the immigration agency get to the
“truth” in these circumstances?
are not just hypothetical questions. In my own work with immigrants in New York
City, arrests for the mere sharing of marijuana are common. “Stop and frisk”
and other law enforcement policies target largely communities of color in their
neighborhoods, housing units, and streets, leading to disproportionate marijuana-related arrests. When officers see some kind of exchange of marijuana, the
go-to charge is misdemeanor marijuana “sale.” And under New York law, the
difference between sharing or selling does not matter for conviction. Thousands
of New Yorkers are arrested every year—often pleading out at arraignments—under
this provision, with no incentive or opportunity to establish or dispute the
characterization of their involvement as a sale or as sharing.
the context of my work, I’ve met with countless New Yorkers facing a “drug
trafficking aggravated felony” charge for often a single marijuana misdemeanor
conviction. Some attempt to convince the Immigration Judge that it was sharing,
but cannot find the witnesses or even the paper records (some of which are
destroyed) to demonstrate their side of the case. My immigrants’ rights clinic at NYU and others in this field have represented people whose
marijuana convictions were from decades ago, with no paper record available of
what occurred when they were arrested; parents who have been detained on these
grounds, losing custody of their children while they try to gather records to establish
what happened in a long-ago misdemeanor arrest; young people who were arrested
for these offenses as teenagers sharing marijuana with other friends; asylees who have been stripped of their
protection from the country that persecuted them while they litigate their
cases; and countless others who, for the first time in immigration court, are
forced to fight out issues about their past misdemeanor convictions that were
entirely irrelevant to the past criminal court adjudication.
process has been messy and ugly and heartbreaking. And these are the cases
where people were lucky to have lawyers. For the vast majority of noncitizens
who are unrepresented, they are fighting out these issues on their own.
categorical approach is a simple rule. It prevents the mess in what would
otherwise be an awkward fact-bound re-adjudication of a person’s past conviction—a
messiness that more often than not obscures the truth about a person’s past
conviction. By focusing on the conviction, the categorical approach safeguards
basic concepts of due process, uniformity, predictability, efficiency, and
proportionality. Congress chose this approach long ago when it tied immigration
consequences to convictions, rather than conduct.
why the categorical approach has been around for the past hundred years in the
immigration context. And as 83 immigration law professors have recently explained, that’s why we hope it’s here to stay.