Crimmigration Law Research: The Categorical Approach

The Duenas-Alvarez Court first introduced the notion of “realistic probability” for categorical approach cases. "[I]in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires 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. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (non-generic) manner for which he argues."

A constitutionally competent defense attorney must advise a defendant of the immigration consequences of entering into a guilty plea.

Noncitizen convicted of possession of marijuana with intent to distribute under Georgia state Code § 16-13-30. Government tried to remove him claiming conviction was an aggravated felony “illicit trafficking in a controlled substance,” §1101(a)(43)(B), which, as relevant here, includes the conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony. Held: If a noncitizen's conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA.

The key [of the categorical approach] ... is elements, not facts.” we consider the language of the statute and not the particular facts underlying the defendant's prior offenses.

Court examined whether a conviction under Kansas law for possession of drug paraphernalia authorized the petitioner's removal under the INA. Without relying on or referring to the realistic probability inquiry, the Court applied the categorical approach and held that it did not. The Court reached this conclusion because the Kansas statute did not require any finding that a defendant also possessed a controlled substance, making it broader than the related federal offense. Because the statute unambiguously applied to possession of drug paraphernalia alone, no additional proof that the petitioner's interpretation of the statute was realistic was required.

Holding, without making reference to the realistic probability inquiry, that because a state burglary statute encompassed more conduct than the generic federal offense for burglary under the ACCA, there was no categorical match. Since the state burglary statute was divisible, a modified categorical approach was appropriate whereby the court could look at a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.

Applying the categorical approach, a court considers not the facts of an individual's conduct, but rather whether the offense of conviction necessarily or categorically triggers a consequence under federal law. Under Mr. Pereida's view, because a person could hypothetically violate the Nebraska statute without committing fraud—i.e., by carrying on a business without a license - the statute does not qualify as a crime of moral turpitude. But application of the categorical approach implicates two inquiries—one factual (what was Mr. Pereida's crime of conviction?), the other hypothetical (could someone commit that crime of conviction without fraud?). And the Nebraska statute is divisible, setting forth multiple crimes, some of which the parties agree are crimes of moral turpitude. In cases involving divisible statutes, the Court has told judges to determine which of the offenses an individual committed by employing a “modified” categorical approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant's prior conviction.” Mathis v. United States, 579 U.S. ––––, ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604. This determination, like many issues surrounding the who, what, when, and where of a prior conviction, involves questions of historical fact. The party who bears the burden of proving these facts bears the risks associated with failing to do so. This point is confirmed by the INA's terms and the logic undergirding them. A different conclusion would disregard many precedents. See, e.g., Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, see, e.g., Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1, they work against the alien seeking relief from a lawful removal order. Congress can, and has, allocated the burden differently.