Find a unicorn, slay a dragon: the categorical approach, circa 2023


The courts can be tough playgrounds, I know, but defense attorneys must be inventive and fearless to overcome skepticism and achieve hard-won victories, especially in the technical area of ​​the “categorical approach.” I spend much of my career defending criminal immigrants and often use the “categorical approach,” challenging many well-established notions about what crimes should have immigration consequences, including over the past decade and seeking legal answers to life’s toughest drug questions, like “Is ‘cocaine’ really cocaine?” and “what happens if a drug law does not have an element of criminal intent?” »

This path has led (in my opinion) to some low blows. Several years ago, a case I co-represented was flagged by the Board of Immigration Appeals (BIA) for additional And amicus briefing on the issue of cocaine definitions. that of Florida “cocaine” the law is formulated differently from that federal definition and the BIA wanted more ink to flow before determining whether this semantic definition was both scientifically real and legally meaningful. With the help of a doctor in chemistry and a few amicus curiae partners, we delved into the molecular world of “stereoisomers” and “non-geometric diastereomers” to show that the way Florida defined cocaine was in fact and significantly broader than the way the federal government defined cocaine. We further showed that Florida prosecutors never worry about it what type of cocaine molecule was found in a drug bust, because they always (as in our client’s case) accuse the accused “genericly” of having used “cocaine”.

In response to this earnest effort, we ultimately received a negative decision from the BIA, although unpublished, along with a concurring opinion using the term “absurd,” referring to the television program. Break the bad (“I’m pretty sure Walter White never asked (that) question”), and concluding that “at some point, common sense must prevail, and we are well beyond that point.” Even more frustrating, the proposed agreement “I’m not a chemist, so the question… is well beyond my level of expertise”, as if the apparent complexity of a law should be determinative of immigration consequences, even when an expert explains this language to a specialist. court (the BIA), and where the language in question was used by a legislatorapparently not all of its members are chemists themselves.

The appeal of this case to the United States Court of Appeals resulted in a similar result in 2022, this time published, with similar prose. The court provided what it considered a useful metaphor, that our theory amounted to the assertion that a criminal code protecting animals could be unfairly applied to acts involving… (wait for it)… a dragon. To win, apparently, it would be necessary to prove that the “dragons” (i.e. non-generic cocaine molecules) exist and that prosecutors bring criminal charges involving them. Ouch.

Meanwhile, over the next five years, many other courts had “gone there,” recognizing that It matters whether a state defines cocaine, methamphetamine, ethylone and other drugs in unusual ways. A few weeks after our loss of “cocaine”, even the Eleventh Circuit applied this logic and agreed that Florida “cannabis” is not the same thing as federal “cannabis” (as the court might imagine the overly inclusive nature of Florida’s definition). Soon after, I shared in a moral (and real) victory as one half of AILA amicus team that helped demonstrate that New York “cocaine” is not “cocaine” before the Second Circuit, when the Justice Department sought pretrial detention.

It is no wonder that the Supreme Court has repeatedly used the offenses of “burglary” to illustrate its categorical approach, because it is much easier to imagine the variations of this crime than chemical definitions. In the classic categorical, “by elements” approach, courts compare the action (did the “burglary” require illegal entry (or stay) in a building, which is part of the “generic” burglary? ) and/or the location element (did the state offense include boat trailers or jet skis as potential forums for “burglary”, as opposed to just generic locations of “structures” and “dwellings”? ) to determine whether the offense necessarily corresponds to a standard definition. This methodology helpfully explains terms such as “flight,” “violence,” “minor,” And “firearm.” If, on its face, a state’s criminal statute omits an element of the generic offense or a prosecution under that statute includes additional options broader than the generic offense, the crime carries no consequence in matters of immigration. However, if the wording of the law does not clearly establish unusual overbreadth, advocates can still win, by identifying state convictions that applied the law to unusual, non-generic facts, that’s to sayfind the proverbial unicorn.

We must always keep in mind that the strict “element-based” approach is not applicable to all situations. As the aggravated crime of “fraud” highlights, courts have held that when immigration law establishes a consequence for a crime “involving _______“, the crime is the subject of a conduct-based investigation, in which the consequence can be triggered by looking generally at what the accused said. didnot what the elements of the crime literally established. In 2000 and 2023 respectively, the Supreme Court reiterated this “conduct-based” approach to laws involving “involving ______” and apparently extended it to the statutes “related to ______.”

With so many criminal codes interpreted by the various circuits, many AILA members devote their practice solely to criminal defense and the categorical approach. Law review articles and whole books are written on the subject. Vigilance is required to stay abreast of the current rules of the game and monitor the “hot issues” that filter through the BIA and appellate courts. AILA now has devoted a conference to the subject, with a first panel of experts teaching the categorical approach in depth, according to a model familiar to the immigration bar. However, the rest of the day will be truly new: Experts will summarize the dominant lines of cases from each appeals court, so participants can see how each circuit’s precedent compares to the others’ cases and get a sense of trends. . , and potential copying theories to use or support.

As with “cocaine,” a theory can spread across the country and become normalized. As I’ve learned, losing can seem harsh, but the right perspective is that each case is part of a larger movement, and serious advocacy means playing the long game by raising and preserving every available issue. A “theory” is only new until someone wins with it, at which point it becomes a “dragon-slaying” weapon, in the hands of all advocates.


AILA members interested in learning more about the categorical approach, your opportunity awaits at the fall conference:

Leave a comment