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Crimmigration Law Research: The Categorical Approach

This guide highlights sources to help determine if/when a client's criminal conviction triggers a ground for removal.

The Categorical Approach

The "categorical approach" is an analysis courts undertake to determine if a noncitizen's criminal (state) conviction triggers grounds for removal under the federal immigration statutes. "A court does not consider the facts of an individual’s crime as he actually committed it. Instead, a court asks only whether an individual’s crime of conviction necessarily—or categorically—triggers a particular consequence under federal law." (see Pareida v. United States). 

According to the Immigrant Legal Resource Center (ILRC), there are three steps to the categorical approach:

  1. Determine if there is a categorical match between the definition of the crime under the state statute of conviction and the definition of the crime under the generic (federal) statutes.  This step has three prongs:
    • Find the statute of conviction. Identify the definition (elements) of the statute of conviction. Identify the minimum conduct required for guilt under the statute of conviction. These inquiries require research into state criminal statutes and state court decisions that interpret/apply the statutes. 
    • Find the generic (federal) definition (elements) of the crime. This inquiry requires research into the federal statutes and federal case law interpreting and applying those statutes; and
    • Compare the definition (elements) of the crime in the state statute of conviction with the definition (elements) of the crime in the generic (federal) statute. If the state's definition of the crime fits within the generic definition of the crime, there is a categorical match, which triggers removal. If, however, the state's definition of the crime goes beyond (i.e., is broader than) the generic (federal) definition of the crime, and if there is 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," there is no categorical match and the inquiry moves to the next step (Moncrieffe v. Holder)  
    • NOTE: The 8th Circuit, per Gonzalez v. Wilkinson, found that when the plain language of a statute of conviction is overbroad, a noncitizen is not required to also show that there is a "reasonable probability of prosecution" to meet the minimum conduct test. 
  2. Determine if the state statute of conviction is divisible. This inquiry requires distinguishing the elements of the statutory crime of conviction from the means. It involves statutory interpretation through analysis of the plain language (e.g., use of alternative "or" statements in the statute of conviction signal divisibility whereas a list of illustrative examples suggest means), as well as through state court decisions and approved jury instructions. If a statute is divisible, the analysis moves to the next step. If the statute is indivisible and also overbroad (see step 1), the inquiry should end and the noncitizen should prevail.
  3. If the state statute is overbroad and divisible, apply the "modified categorical approach" to determine which crime the client was convicted. The analysis reaches the third step when a statute of conviction is both overbroad and divisible. This is the "modified categorical approach" and it permits the court to look at the facts from the conviction record. The conviction record could include the noncitizen's indictment, jury instructions, plea agreement and colloquy. 


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