categorical approach

Supreme Court says gap in conviction records hurts migrant

In a split decision issued today, the U.S. Supreme Court announced that gaps in conviction records created by state courts should be treated against migrants who are required to show that they haven’t been convicted of certain types of crimes. The decision, Pereida v. Wilkinson, No. 19-438 (March 4, 2021) (previewed here), split the Court along ideological lines, with Justice Gorsuch writing the majority opinion and Justice Breyer leading Justices Sotomayor and Kagan in dissent. Justice Barrett didn’t participate in this case, resulting in a five to three vote. The majority and dissenters [...]

Reviewing Mathis v. United States

By Kelley Keefer and Linus Chan Justice Alito’s woeful tale of a misguided European driver in his dissenting opinion of Mathis v. United States is presented as a criticism to the Supreme Court’s categorical approach jurisprudence. No. 15-6092, slip op. dissent at 1 (J. Alito dissenting) (U.S. Sup. Ct., June 23, 2016). And while one (and the majority) may disagree as to whether Taylor v. United States, 495 U.S. 575 (1990), really was a wrong turn, the 26 years since the publication of Taylor has nonetheless proven to be an interesting journey. Mathis provides the latest attempt by the [...]

BIA: Crime of violence requires violent physical force

The Board of Immigration Appeals recently held that an aggravated battery offense could not be considered a crime of violence type of aggravated felony because the state statute did not require use of violent physical force. Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016). This case involved a lawful permanent resident convicted of aggravated battery in violation of Puerto Rico Penal Code art. 122. The immigration judge concluded that this conviction satisfied the definition of crime of violence found at 18 U.S.C. § 16(a), namely, that the offense “has as an element the use, [...]

Justice Scalia’s Crimmigration Legacy

Andrea Sáenz Supreme Court Justice Antonin Scalia’s recent passing has spurred a wealth of commentary about his career and legal philosophy, including the recognition that the legendary conservative jurist issued a number of rulings sympathetic to criminal defendants [see here, here, or here]. What have attracted less notice so far are his consistent votes for noncitizens in cases involving the immigration consequences of criminal convictions, or for defendants in cases involving the sentencing consequences of prior convictions. In both types of cases, Scalia was an extremely reliable vote [...]

Categorical approach returns to Supreme Court

By Nicholas Anderson and Linus Chan The Supreme Court’s decision on Tuesday to grant cert in the Texas v. United States case has gotten quite a bit of deserved attention among the media, pundits, and immigration advocates and scholars. However, crimmigration nerds should be paying attention to a different Supreme Court cert. grant on the same day. Despite not featuring an immigrant or even immigration law directly, United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015) (docket number 15-6092), will have a significant impact on anyone facing removal from the United States based on a [...]

Supreme Court hears crimmigration arguments today

Today the U.S. Supreme Court will hear oral arguments in the latest in its constant stream of crimmigration cases. As with many other Supreme Court crimmigration decisions, Torres v. Lynch, No. 14-1096 (U.S.), requires the Court to untangle the aggravated felony basis of removal. In particular, Torres concerns the aggravated felony category concerning arson crimes. Stemming from a decision of the U.S. Court of Appeals for the Second Circuit affirming a BIA decision, Torres hones in on the precise meaning of the phrase “described in” which appears in several subsections of the sprawling [...]

9 Cir: Overly Broad California Child Pornography Statute Isn’t Aggravated Felony

By: Sarah Flinn The U.S. Court of Appeals for the Ninth Circuit, using the categorical approach, recently determined that the California statute regarding the possession of child pornography, California Penal Code § 311.11(a), is broader than the federal statute and therefore is not considered to be an aggravated felony for purposes of INA § 237(a)(2)(A)(iii) and § 101(a)(43)(I). Chavez-Solis v. Lynch, No. 11–73958, 2015 WL 5806148, at *1, *2 (9th Cir. Oct. 6, 2015). Oscar Chavez-Solis, a native and citizen of Mexico, has been a lawful permanent resident of the United States since 1999. [...]

9 Cir. finds part of crime of violence definition unconstitutional

The U.S. Court of Appeals struck an important blow against the crime of violence type of aggravated felony yesterday holding that part of the term’s definition is unconstitutionally vague. Dimaya v. Lynch, No. 11-71307, slip op. (9th Cir. Oct. 19, 2015). The court held that the so-called “residual clause” of the crime of violence definition fails to provide migrants with sufficient notice of the kind of conduct it prohibits to satisfy the Fifth Amendment Due Process Clause. This case involved a lawful permanent resident twice convicted of first-degree burglary in violation of California [...]