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The Whole Better than the Sum: A Case for the Categorical Approach to Determining the Immigration Consequences of Crime

Jennifer Lee Koh

Western State College of Law

April 26, 2012

Georgetown Immigration Law Journal, Vol. 26, 2012

The immigration laws have long described categories of crimes that lead to adverse immigration consequences, such as deportation. But how should adjudicators assess whether a given conviction triggers deportation? The federal courts and administrative agencies have typically employed a methodology — known as the categorical approach — that focuses on statutory elements, rather than the underlying facts of the crime. The categorical approach’s counterfactual nature, its tendency to produce counterintuitive results, and its doctrinal complexity have caused some courts and the immigration agency to attack, dilute, and inconsistently apply it. Rather than assess the categorical approach based on the outcomes generated in individual cases, this article evaluates the cumulative effect of the categorical approach. I argue that the categorical approach, a procedural hybrid of statutory interpretation and evidentiary rules, has substantive value. The categorical approach corrects for certain pervasive asymmetries facing noncitizens — asymmetries that were sharpened by the passage of the 1996 immigration laws, which vastly expanded the kinds of crimes that lead to deportation while virtually eliminating discretionary review. Despite its problems, a strong version of the categorical approach acts as a de facto substitute for the absence of proportionality and relief in the federal deportation provisions, the unrestrained prosecutorial powers of the federal immigration agency, and limitations on judicial review. Until deeper reforms in the immigration laws take place, the categorical approach provides meaningful benefits to noncitizens and the immigration system.

Number of Pages in PDF File: 55

Keywords: immigration, deportation, removal, categorical approach, categorical analysis, aggravated felony, crime involving moral turpitude, procedure, administrative, evidence, noncitizen, judicial review, proportionality, discretion, plenary power

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Date posted: April 27, 2012 ; Last revised: May 21, 2013

Suggested Citation

Koh, Jennifer Lee, The Whole Better than the Sum: A Case for the Categorical Approach to Determining the Immigration Consequences of Crime (April 26, 2012). Georgetown Immigration Law Journal, Vol. 26, 2012 . Available at SSRN: http://ssrn.com/abstract=2046839

Contact Information

Jennifer Lee Koh (Contact Author)
Western State College of Law ( email )
1 Banting
Irvine, CA 92618
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