The Categorical Approach, Backlogs, and Removability

By Andrew R. Arthur on January 8, 2018

In my July 2017 Backgrounder, "The Massive Increase in the Immigration Court Backlog", I stated that a series of cases in which the Supreme Court expounded on its interpretation of the "categorical approach" have made it more difficult for immigration judges to issue decisions in an expeditious manner and have increased the number of remands to the immigration court.

To understand the effect that those cases have had on the backlog, it is important to understand the "categorical approach" and how it has affected immigration judges.

To begin with, most of the criminal grounds of removability do not reference a specific criminal statute, or specifically render an alien removable for violation of such a statute. For example, section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA) states that an alien is removable if he or she has been "convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j)) after the date of admission, and ... is convicted of a crime for which a sentence of one year or longer may be imposed."

The sentence requirement is easy to determine, and the timing provision is only slightly more complicated. The main question usually revolves around whether the alien has been convicted of "a crime involving moral turpitude".

As U.S. Citizenship and Immigration Services (USCIS) explains:

The term moral turpitude is not defined under federal law. However, courts in the United States have defined it generally as an act that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.

Due to the term's complicated meaning and the various laws that must be reviewed to determine if an individual has committed a crime involving moral turpitude, consultation with an experienced immigration attorney is recommended for any person to whom this section may apply.

The second paragraph is an understatement. Applying this 19th century concept, however, is generally simplified because certain crimes have been recognized as involving moral turpitude, such as "murder, voluntary manslaughter, kidnaping, robbery, and aggravated assaults." Most aliens are removable, however, because of their violation of state, and not federal laws, and not all states define crimes in the same manner, complicating this process.

This issue is further complicated because section 237(a)(2)(A)(iii) of the INA renders removable an alien convicted of an "aggravated felony" as defined in section 101(a)(43) of the INA. That latter provision contains 21 separate subparagraphs defining the term "aggravated felony".

Some of those subparagraphs are explicitly tied to federal statutes. For example, section 101(a)(43)(D) of the INA defines "aggravated felony" as: "an offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000."

Some of the subparagraphs, much like the cases defining "crime involving moral turpitude", define the phrase "aggravated felony" by reference to specific categories of crimes, such as "murder, rape, or sexual abuse of a minor" in section 101(a)(43)(A) of the INA.

And then some of those subparagraphs define the term by reference to general legal concepts, such as section 101(a)(43)(F) of the INA: "a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment at least [sic] 1 year." The referenced provision, 18 U.S.C. § 16, defines a "crime of violence" as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

To apply these provisions, the Supreme Court, circuit courts, and the Board of Immigration Appeals (BIA) have turned to the "categorical approach", a concept that was first applied in criminal law sentencing cases.

In Taylor v. U.S., the defendant had been convicted of possession of a firearm by convicted felon in violation of 18 U.S.C. § 922(g)(1). The Court was attempting to determine whether the respondent's two convictions for second-degree burglary under Missouri law were "violent felon[ies]" for purpose of a sentence enhancement for that firearm offense under 18 U.S.C. § 924(e). Under section 924(e)(2)(B):

[T[he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year ... that —

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

The Court there first formulated a "generic" definition of burglary, to include "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." It held that thereafter that in applying this provision, the sentencing court could look "only to the fact of conviction and the statutory definition of the prior offense," although it admitted:

This categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.

In Shepard v. United States, the Court considered whether a sentencing court applying the categorical approach in a separate case involving an enhancement under 18 U.S.C. § 924(e) could "look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary." It concluded that it could not do so, and "that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented."

Subsequently, courts began applying the categorical approach to the grounds of removability. As the Court held in Gonzales v. Duenas-Alvarez:

The [INA] lists a set of offenses, conviction for any one of which subjects certain aliens to removal from the United States, [section 237(a) of the INA]. In determining whether a conviction (say, a conviction for violating a state criminal law that forbids the taking of property without permission) falls within the scope of a listed offense (e.g., "theft offense"), the lower courts uniformly have applied the approach this Court set forth in Taylor.

Similarly, in Moncrieffe v. Holder, the Court asserted:

This categorical approach has a long pedigree in our Nation's immigration law. The reason is that the INA asks what offense the noncitizen was "convicted" of, [section 237(a)(2)(A)(iii) of the INA], not what acts he committed. "[C]onviction" is "the relevant statutory hook."

The Court made clear there that under the "categorical approach" it does not look at the facts of the "particular prior case", but rather "whether 'the state statute defining the crime of conviction' categorically fits within the 'generic' federal definition of a corresponding" ground of removability. Even then, the court must "presum[e] that the conviction 'rested upon nothing more than the least of the acts' criminalized, and then determin[e] whether even those acts are encompassed by the generic federal offense."

It continued:

[O]ur focus on the minimum conduct criminalized by the state statute is not an invitation to apply "legal imagination" to the state offense; there must be "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime."

In addition to the "categorical approach", the Supreme Court in Taylor authorized a process that would later come to be called the "modified categorical approach", which allowed the fact finder to look beyond the black letter of the statute to "the charging paper and jury instructions" in the underlying case. This approach has also been applied to immigration cases for judges to use in determining whether an offense renders an alien removable.

As the Court held in Descamps v. U.S., this approach applies when the conviction in question relates to a violation of a "divisible statute", that is, one that "sets out one or more elements of the offense in the alternative." The example given by the Court there was burglary that "involves entry into a building or an automobile." In this situation, the Court explained:

If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.

The Court in Descamps asserted this approach "helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction."

Refinements by the Court, however, have complicated this otherwise simple formula. For example, in Descamps (which also involved a sentence enhancement under 18 U.S.C. § 924(e)), the Court held that a sentencing court considering a conviction under an "indivisible statute", that is, "one not containing alternative elements — that criminalizes a broader swath of conduct then the relevant generic offense," could not apply the modified categorical approach to "scrutinize certain documents to determine the factual basis of the conviction" so as to determine whether the defendant "actually committed the generic offense."

The Court found that the crime there, a violation of Cal. Penal Code § 459, could not satisfy the generic definition of "burglary" because it did not require "an unlawful entry along the lines of breaking and entering", but also covered shoplifting (which would have been a lawful entry). Given these facts, the court determined, it was therefore inappropriate for the reviewing court to look behind the defendant's conviction for proof that the offense he committed satisfied the generic definition.

Notably, in the plea hearing for the underlying criminal conviction, the prosecutor made a proffer that the crime "involved the breaking and entry of a grocery store", a fact that the defendant did not object to. The Court held, nonetheless:

Descamps may (or may not) have broken and entered, and so committed generic burglary. But §459 — the crime of which he was convicted — does not require the factfinder (whether jury or judge) to make that determination. Because generic unlawful entry is not an element, or an alternative element, of §459, a conviction under that statute is never for generic burglary.

In Mathis v. U.S., the Supreme Court picked up on this theme, emphasizing the distinction between the "elements of the crime of conviction" for purposes of applying the categorical approach, and the "facts" of the case, also called the "brute facts" by the Court.

Again, this was a case that involved a sentence enhancement for being a felon in possession of a firearm, with five prior burglary convictions under Iowa law. The court concluded that the burglary statute there, Iowa Code § 702.12 (2013), reached a broader number of locations than generic burglary under Taylor, that is, "a building or other structure". The Court held:

And those listed locations are not alternative elements, going toward the creation of separate crimes. To the contrary, they lay out alternative ways of satisfying a single locational element, as the Iowa Supreme Court has held: Each of the terms serves as an "alternative method of committing [the] single crime" of burglary, so that a jury need not agree on which of the locations was actually involved. ... In short, the statute defines one crime, with one set of elements, broader than generic burglary—while specifying multiple means of fulfilling its locational element, some but not all of which (i.e., buildings and other structures, but not vehicles) satisfy the generic definition.

In reaching this holding, the Court rejected the conclusion of the Eighth Circuit Court of Appeals that it could invoke the modified categorical approach and look at the conviction records to determine which of the crimes the defendant had been convicted of. It concluded:

How a given defendant actually perpetrated the crime — what we have referred to as the "underlying brute facts or means" of commission ... makes no difference; even if his conduct fits within the generic offense, the mismatch of elements saves the defendant from an [18 U.S.C. § 924] sentence. Those longstanding principles, and the reasoning that underlies them, apply regardless of whether a statute omits or instead specifies alternative possible means of commission. The itemized construction gives a sentencing court no special warrant to explore the facts of an offense, rather than to determine the crime's elements and compare them with the generic definition.

This means that an immigration judge, in an attempt to determine whether an alien is removable based upon a conviction under a statute written in the disjunctive, must review "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and[/or] any explicit factual finding by the trial judge to which the defendant assented" to determine which of the disjunctive parts of the statute the responded violated, and then determine whether the statute is (1) divisible and/or (2) whether the disjunctive parts are "elements" or simply "facts", describing different ways in which an given crime can be committed. This latter effort, in turn, may require an analysis of the applicable state law and court decisions interpreting the criminal statute in question.

Fortunately, immigration judges generally hear cases involving convictions under familiar statutes. For example, I handled dozens if not hundreds of cases involving 35 Pa. Stat. Ann. § 780-113(a)(30), Pennsylvania's drug trafficking statute, and its federal counterpart, 21 U.S.C. § 841(a). That said, however, the Supreme Court's decision in Moncrieffe completely changed my analysis and the analysis of my fellow immigration judges in cases involving marijuana.

There is no guarantee, however, that an immigration judge will hear a case involving a familiar criminal statute, or even one from a nearby state. While there are many similarities among the states as they apply to the interpretation of criminal statutes, there are also a significant number of inconsistencies. For example, there are numerous differences among the states as relates to the sentences that are imposed for similar criminal convictions.

Finally, the immigration judge is reliant upon the U.S. Immigration and Customs Enforcement (ICE) trial attorney to provide the court with the requisite documents to establish the nature of the alien's conviction. Transcripts of plea colloquies, in particular, can be difficult to obtain, especially in cases involving convictions occurring years before. Without these documents, however, the application of the "categorical approach" and "modified categorical approach" to a given case may be impossible. As a judge, I often had to continue matters in order to get the requisite documents, sometimes to no avail.

In addition, such documents must be certified under 8 C.F.R. § 287.6(a):

Proof of official records.

Domestic. In any proceeding under this chapter, an official record or entry therein, when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by the official having legal custody of the record or by an authorized deputy.

This provision is generally only "honored in the breach" (as that term is commonly used), that is, only when conviction documents are not certified and counsel for the alien (or the alien) objects to their admission into the record. This is usually only an obstructionist move, because the alien (or counsel) knows whether and for what the alien has been convicted, or can easily compare the documents submitted with the copies in the alien's file. I have been informed, however, that many counsel (and in particular those who do not, as a general matter, practice immigration law) have taken to making such objections on a regular basis. Again, this results in even further continuances, delaying proceedings.

In Matter of Chairez-Castrejon, a case in which the BIA issued four separate published decisions (and the attorney general issued one more) Board Member Garry Malphrus issued a concurrent opinion in the last in which he stated:

Here, we must presume that the respondent committed the least of the acts criminalized within the range of conduct punishable under his statute of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). This is true even though the respondent's plea agreement indicates that he did more — specifically, that he knowingly discharged a firearm at another, and thus he committed an aggravated felony crime of violence. See id.

The approach to divisibility required by Descamps and Mathis will result in immigration proceedings being terminated for many aliens who have committed serious crimes in the United States. See, e.g., Ramirez v. Lynch, 810 F.3d 1127, 1134–38 (9th Cir. 2016) (reversing the order of removal upon concluding that the California statute proscribing felony child abuse was not divisible, and thus it was improper to consider the conviction records in determining whether the alien's conviction constituted an aggravated felony crime of violence). It is for Congress to determine whether this approach is consistent with its intent regarding the immigration consequences of such criminal conduct.

I concur with Malphrus' frustration in this regard. Plainly, if there is an actual issue as to whether an alien is removable based on a conviction, where the government bears the burden, removability may not be found. It is questionable, however, whether an aggregation of decisions, issued primarily in the criminal sentencing context, should result in aliens who are clearly removable being allowed to avoid deportation and remain in the United States to commit more crimes. He is right that Congress has the ability to remedy this anomaly. The question is whether they have the will. They will likely soon have the opportunity.