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SCOTUS: Categorical approach is alive and well

The categorical approach isn’t going anywhere. That is clear from the Supreme Court’s majority opinion in Mellouli v. Lynch, No. 13-1034, slip op. (June 1, 2015), released this morning. Led by Justice Ginsburg, the seven justices in the majority took a firm line on the BIA’s decision to deviate from the time-tested categorical approach to statutory analysis used to determine whether a particular conviction results in deportability. The Board was wrong to do that, the Court explained, and thus reversed the Eighth Circuit’s decision affirming the Board. Along with seven other academics and [...]

Posted by César on June 1, 2015 on 11:56 am 2 Comments
Filed Under: categorical approach, circumstance-specific, controlled substance offense, Symposium, U.S. Supreme Court

Cardozo clinic defeats aggravated felony charges after years of litigation

By Katie Tinto, Assistant Clinical Professor of Law, Cardozo School of Law On February 2, 2015, an immigration judge in New York City terminated removal proceedings after finding that the government failed to meet its burden of proof that a lawful permanent resident (hereinafter, “Mr. P”) was removable on the grounds of either an aggravated felony theft offense or an aggravated felony fraud offense. Matter of P-F-M- (NYC Immigr. Ct. Feb. 2, 2015). The Kathryn O. Greenberg Immigration Justice Clinic of Cardozo School of Law (IJC) represented Mr. P for over three years, but for Mr. P, a [...]

Posted by César on May 5, 2015 on 4:00 am Leave a Comment
Filed Under: aggravated felony, categorical approach, fraud or deceit, guest blogger, Immigration Court, theft offense

Silva-Trevino is dead

Without fanfare and with only the stroke of a pen, Attorney General Eric Holder made an enormous contribution to the rule of law last Friday when he vacated Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), a much criticized decision by Attorney General Michael Mukasey about the proper means of analyzing the crimes involving moral turpitude basis of inadmissibility. Matter of Silva-Trevino, A013-014-303 (A.G. April 10, 2015) (read the informal order as originally distributed here; read the formal decision here). Building off multiple Supreme Court decisions and even longer federal [...]

Posted by César on April 13, 2015 on 4:45 pm 2 Comments
Filed Under: categorical approach, crime involving moral turpitude, Silva-Trevino, Uncategorized

Understanding the categorical approach

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 [...]

Posted by César on February 19, 2015 on 4:00 am 1 Comment
Filed Under: categorical approach, Uncategorized

BIA: Categorical approach is circuit-specific

No one has ever said that the categorical approach is straightforward. In a decision issued yesterday, the BIA managed it make it tougher to follow. Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [hereinafter Matter of Chairez II] (Pauley, Greer, and Malphrus). Board Member Pauley wrote the panel’s decision. Immigration attorneys and judges are required to use the categorical approach to determine whether a crime falls into a category of removable offense listed in the INA. The same analysis applies to possible sentencing enhancements in criminal proceedings, thus categorical approach [...]

Posted by César on February 12, 2015 on 4:00 am Leave a Comment
Filed Under: ACCA, Board of Immigration Appeals, categorical approach, Uncategorized

BIA: Sexual abuse of a minor based on statutory rape of 16-or 17-year-old must include meaningful age differential

The Board of Immigration Appeals held that a statutory rape offense must include, as an element, a meaningful age difference between the abuser and victim in order to be classified as sexual abuse of a minor, a type of aggravated felony. Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015). Board Member Malphrus wrote the panel’s opinion. This case involved an LPR convicted of unlawful intercourse with a minor more than three years younger, a violation of Cal. Penal Code § 261.5(c). An IJ concluded that this offense constituted sexual abuse of a minor under INA § 101(a)(43)(A). On [...]

Posted by César on January 27, 2015 on 4:00 am Leave a Comment
Filed Under: aggravated felony, Board of Immigration Appeals, categorical approach, element, sexual abuse of a minor, Uncategorized

Mellouli symposium continues: Jimson Weed

The online symposium on Mellouli v. Holder that launched Tuesday continues today with a musical interlude by Andrea Saenz, a Clinical Teaching Fellow at Cardozo Law’s Immigration Justice Clinic. Here’s Andrea’s original Jimson Weed, set to the tune of Michael Jackson’s “Billie Jean.” * * * It was more like a awful dream from a horror scene Deport an LPR math teacher based on a sock Now we’re back, seeking help, from the Court Don’t care what’s in the sock….Close enough, said the 8th Circuit Court He told me that he was charged by ICE, they were not so nice Said you had drugs and [...]

Posted by César on January 15, 2015 on 4:00 am Leave a Comment
Filed Under: categorical approach, controlled substance offense, guest blogger, Symposium, U.S. Supreme Court

Online symposium on crimmigration law: Supreme Court hears Mellouli v. Holder

Can a sock result in removal? That’s the practical question that the Supreme Court will have contend with when it hears oral arguments in Mellouli v. Holder tomorrow. To clarify the case, crImmigration.com is launching an online symposium today featuring several practitioners and scholars with special insight into the key issues Mellouli raises. Today’s contributors—Alina Das, Jennifer Lee Koh, Nancy Morawetz, Maureen Sweeney, and Craig Shagin—represent a cross-section of academics and practitioners who have followed the issues that Mellouli raises for some time. All bring unique [...]

Posted by César on January 13, 2015 on 4:05 am 13 Comments
Filed Under: categorical approach, controlled substance offense, Symposium, U.S. Supreme Court, Uncategorized

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