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A Particularly Serious Exception to the Categorical Approach

67 Pages Posted: 22 Jun 2017 Last revised: 28 Jul 2017

Fatma E. Marouf

Texas A&M University School of Law

Date Written: June 1, 2017

Abstract

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet, the Board of Immigration Appeals has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examination of the elements with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offenses are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious crime determination to promote greater uniformity and provide the predictability necessary to make informed pleas. Recent Supreme Court decisions, as well as a 2015 opinion by the Attorney General, support this argument by stressing that the use of the word “convicted” in the Immigration and Nationality Act triggers a categorical analysis. Although the United Nations High Commissioner for Refugees has interpreted the particularly serious crime bar as requiring an individualized analysis, this Article argues that the categorical approach better protects the High Commissioner’s underlying concerns of consistency and fairness.

Keywords: immigration, deportation, asylum, refugee, persecution, bar, particularly serious crime, categorical approach, modified, conviction

JEL Classification: K37

Suggested Citation

Marouf, Fatma E., A Particularly Serious Exception to the Categorical Approach (June 1, 2017). Texas A&M University School of Law Legal Studies Research Paper No. 17-43. Available at SSRN: https://ssrn.com/abstract=2989913

Fatma Marouf (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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