Using and Defending the Categorical Approach

Background

IDP engages in litigation to defend the application of the “categorical approach” to safeguard fairness in immigration adjudications. Under the immigration laws, a noncitizen generally is not subject to negative immigration consequences, including removal, based on a criminal conviction unless that conviction fits categorically within one of the INA’s criminal removal grounds. The categorical approach requires adjudicators to determine whether all of the conduct covered under the statute of conviction (or, under the “modified categorical approach,” the conduct covered under a divisible sub-portion of the statute) fits within the alleged criminal removal classification. The adoption and continued application of the categorical approach has been motivated by concerns for uniformity, predictability, efficiency, and judicial review. IDP appears regularly as amicus curiae before the U.S. Supreme Court, Courts of Appeals, and BIA in cases addressing the application of the categorical approach in immigration cases.

Challenging Divisibility: Litigation Strategies And Post-Mathis Case Law Survey

The resource is meant to provide support in making aggressive arguments related to indivisibility and the application of the strict categorical approach in the face of continued attempts to weaken it. The first part of the resource includes a primer on divisibility and important criminal law concepts related to case law research, and a discussion of litigation tips and strategies in making indivisibility arguments. The appendix case chart summarizes the divisibility analysis in every post-Mathis case published in the Second, Third, Fifth, Ninth, and Eleventh circuits.

Sample Motion to Reconsider/Reopen for Narcotic Overbreadth in Second Circuit

On February 21, the Second Circuit issued its final decision in United States v. Gibson, 60 F.4th 720 (2d Cir. 2023) clarifying that New York’s definition of “narcotic” is overbroad as of January 23, 2015. This applies to Article 220 controlled substance offenses that involve a “narcotic drug” element. To learn more and download a sample motion to reconsider and reopen/terminate, click here.

Practice Advisories

Practice Advisory: “Realistic Probability” in Immigration Categorical Approach Cases (June 4, 2021) (by IDP and NIP-NLG)
Practice Alert: Overview of Pereida v. Wilkinson for Immigration and Criminal Defense Counsel (March 9, 2021) (by IDP and NIP-NLG)
Esquivel-Quintana v. Sessions: Supreme Court Limits Reach of Aggravated Felony “Sexual Abuse of a Minor” Ground and Provides Support on Other Crim-Imm Issues (June 8, 2017, IDP and NIP-NLG)
Administrative Removal under 238(b): Questions and Answers (Feb. 16, 2017, IDP and NIP-NLG)
- Sample Response to Notice of Intent to Issue a Final Administrative Order of Removal
- Sample Petition for Review of Final Administrative Order of Removal
Practice Alert: In Mathis v. United States, Supreme Court Reaffirms and Bolsters Strict Application of the Categorical Approach (July 1 2016, IDP and NIP-NLG)
Mellouli v. Lynch: Further Support for a Strict Categorical Approach for Determining Removability under Drug Deportation and Other Conviction-Based Removal Grounds ( 2015, IDP and NIP-NLG)
The Realistic Probability Standard: Fighting Government Efforts to Use It to Undermine the Categorical Approach (2014, IDP and NIP-NLG)
Matter of Chairez-Castrejon I: BIA Applies Moncrieffe and Descamps to Clarify and Modify Its Views on Proper Application of the Categorical Approach (2014, IDP and NIP-NLG)
Moncrieffe v. Holder: Implications for Drug Charges and Other Issues Involving the Categorical Approach (2013, IDP, NIP-NLG, and AIC)
Descamps v. United States and the Modified Categorical Approach (2013, IDP and NIP-NLG)

Amicus Briefs

N- v. AG, No. 20-2562 (3d Cir. en banc, pending): Brief of IDP, AILA, et al. in Support of Petitioner (Amicus Counsel WilmerHale, Nationalities Service Center, IDP)
Challenging Matter of Laguerre:
- Brown v. AG, No. 22-1779 (3d Cir.):
  - Amicus Brief of IDP et al. in Support of Petitioner
  - Appendix to Amicus Brief of IDP et al. in Support of Petitioner
- Gayle v. AG, No. 22-1811 (3d Cir.):
  - Amicus Brief of IDP et al. in Support of Petitioner
  - Appendix to Amicus Brief of IDP et al. in Support of Petitioner

Juarez v. Garland, 21-70888 (9th Cir. 2021): Brief of IDP et al in Support of Petitioner
Amicus Brief filed with BIA challenging changes to modified categorical approach in light of Pereida v. Wilkinson (Amicus Counsel Stanford Immigrants’ Rights Clinic)
Matthews v. Barr, 927 F.3d 606 (2d Cir. 2019): Brief of IDP and 6 public defender organizations in Support of Petitioner (Amicus counsel IDP)
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017): Brief of IDP, ILRC, and NIP-NLG in Support of Petitioner (Amicus counsel Wilmer Cutler Pickering Hale and Dorr LLP)
Richards v. Sessions, 711 Fed. Appx. 50 (2d Cir. 2017): Brief of IDP and six public defender organizations in support of Petitioner (Amicus counsel IDP)
Mathis v. United States, 136 S. Ct. 2243 (2016): Brief of AILA, IDP, NIP-NLG, and Individuals with Pending Immigration Appeals Raising the Question Presented in Support of Petitioner (Amicus counsel Orrick, Herrington & Sutcliffe LLP)
Luna-Torres v. Lynch, 136 S. Ct. 1619 (2016): Brief of the NACDL, National Association of Federal Defenders, National Association for Public Defense, NIP-NLG, and IDP in Support of Petitioner (Amicus counsel Gibson, Dunn & Crutcher LLP)
Mellouli v. Lynch, 575 U.S. 798 (2015): Brief of NACDL, IDP, and NIP-NLG Supporting Petitioner (Amicus counsel Wilmer Cutler Pickering Hale and Dorr LLP)