Just one day after the U.S. Supreme Court issued its latest decision explaining how the categorical approach of statutory analysis applies to deportation cases, the Board of Immigration Appeals issued a decision ignoring everything the Court said. In Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA June 2, 2015), the BIA held that immigration judges must consider the “ordinary case” when determining whether a conviction constitutes a crime of violence aggravated felony under 18 U.S.C. § 16(b), the second of two alternative definitions of “crime of violence.”This case involved an LPR who was convicted of felony battery in Florida and sentenced to 24 months imprisonment.

Earlier this month, the Court reiterated its emphasis on the categorical approach in Mellouli v. Lynch (for analyses of that decision, see here, here, here, here, here, here). As if to illustrate how maddening categorical approach analyses can be, the very next day the BIA issued a decision, Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015), that ignores the Court’s clear-eyed focus on determining removability based on a person’s actual conviction (for my analysis of that decision, see here).Some of this confusion stems from the BIA’s intransigence. The Board seems insistent on flouting Supreme Court directives, and the Court seems committed to pushing back.A lot of the confusion, however, comes from the fact that the categorical approach is not straightforward.