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 [...]
BIA deviates from categorical approach; expands use of “circumstance-specific” analysis
Bucking the Supreme Court’s persistent emphasis on the categorical approach, the Board of Immigration Appeals rejected that analytical method for the controlled substance offense’s personal use exception. Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014). Board Member Pauley wrote the panel’s decision. This case involved an LPR convicted under Nevada law of possessing more than one ounce of marijuana. DHS claimed that this constitutes a controlled substance offense under INA § 237(a)(2)(B)(i). The immigration judge disagreed. Instead of engaging in a “circumstance-specific” [...]