Toward a True Elements Test: Taylor and the Categorical Analysis of Crimes in Immigration Law

59 Pages Posted: 11 Sep 2009 Last revised: 23 May 2010

See all articles by Rebecca Sharpless

Rebecca Sharpless

University of Miami - School of Law

Date Written: September 9, 2009


When determining the legal effect of a conviction under immigration law, adjudicators claim to apply a uniform, federal standard that prohibits fact finding regarding the underlying circumstances that gave rise to the conviction. This categorical analysis of crimes is firmly rooted in all levels of administrative and federal court case law. Yet fundamental confusion exists concerning what it means to apply a categorical approach to evaluating when a criminal conviction is of a type that triggers deportation. This article demonstrates that a source of this confusion is a misunderstanding of the nature of a conviction and the difference between a fact necessarily decided to establish an element of the crime and an extraneous fact that appears in the record of conviction. This confusion has undermined the well-settled principle that immigration adjudicators lack the authority to determine the facts underlying a conviction when deportation depends on a conviction rather than conduct.

This article argues that that only defensible rule for analyzing whether a conviction falls within a ground of deportation is a true elements test - a test that characterizes a conviction based solely on facts decided in the prior criminal proceeding to establish guilt. Any deviation from this rule incorrectly permits immigration judges to make independent findings of fact regarding the manner in which a crime was committed.

This article analyzes immigration agency decisions as well as federal court decisions, focusing on the immigration and criminal sentencing jurisprudence of the U.S. Supreme Court and Eleventh Circuit Court of Appeals.

Keywords: immigration, crimimm, categorical, deportation, crimes, conviction, elements test, divisible

JEL Classification: K10

Suggested Citation

Sharpless, Rebecca A., Toward a True Elements Test: Taylor and the Categorical Analysis of Crimes in Immigration Law (September 9, 2009). University of Miami Law Review, Vol. 62, No. 4, 2008, University of Miami Legal Studies Research Paper No. 2009-25, Available at SSRN:

Rebecca A. Sharpless (Contact Author)

University of Miami - School of Law ( email )

1311 Miller Drive
Coral Gables, FL 33146
United States

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