Whether dealing with criminal sentencing or potential removability, attorneys must constantly consider the proper scope and interpretation of the statutory construction method we know simply as the “categorical approach.” Last week’s BIA decision about the categorical approach, Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) (which I blogged about here), reminded me that there’s nothing simple when it comes to the standard method of statutory interpretation used in crimmigration law.
In its most recent pronouncement on the categorical approach, the Supreme Court laid out its basic contours: attorneys and courts are to “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). Converting this framework into concrete legal analyses has proven anything but simple. Indeed, the BIA’s acknowledgment that the federal circuits can and do disagree about what constitutes an “element” means that courts don’t even agree on how to identify the very pieces of statutes we’re supposed to be comparing. Matter of Chairez, 26 I&N Dec. at 481-82. Frankly, it’s maddening.
Enter Maureen Sweeney, an associate professor at the University of Maryland Francis King Carey School of Law. Sweeney has created a short video that provides an expert introduction to the categorical approach in a remarkably accessible style. Because I highly recommend it to anyone trying to wrap their minds around the categorical approach, I’ve included it below. It’s also available on the LegalEd website.
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