Understanding the modified categorical approach

Few areas of crimmigration law are as confounding to novices and seasoned practitioners as the method by which courts determine whether a particular crime exposes a migrant to removal. Known as the categorical approach, cases expounding on this analytical method’s centrality have become a mainstay of Supreme Court decisions in recent years. 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. Maureen Sweeney, an associate professor at the University of Maryland Francis King Carey School of Law, has devoted a great deal of energy to helping make sense of the categorical approach. A few months ago, I blogged about an outstanding video she created explaining the categorical approach. Now she’s added to that with a video explaining what happens when a criminal statute contains multiple alternative provisions. I’m pleased to present that video below.

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