Background
IDP engages in litigation to defend the application of the “categorical approach” to safeguard fairness in immigration adjudications. Under the immigration laws, a noncitizen generally is not subject to negative immigration consequences, including removal, based on a criminal conviction unless that conviction fits categorically within one of the INA’s criminal removal grounds. The categorical approach requires adjudicators to determine whether all of the conduct covered under the statute of conviction (or, under the “modified categorical approach,” the conduct covered under a divisible sub-portion of the statute) fits within the alleged criminal removal classification. The adoption and continued application of the categorical approach has been motivated by concerns for uniformity, predictability, efficiency, and judicial review. IDP appears regularly as amicus curiae before the U.S. Supreme Court, Courts of Appeals, and BIA in cases addressing the application of the categorical approach in immigration cases.
Practice Advisories
- Practice Advisory: “Realistic Probability” in Immigration Categorical Approach Cases (June 4, 2021) (by IDP and NIP-NLG)
- Practice Alert: Overview of Pereida v. Wilkinson for Immigration and Criminal Defense Counsel (March 9, 2021) (by IDP and NIP-NLG)
- Esquivel-Quintana v. Sessions: Supreme Court Limits Reach of Aggravated Felony “Sexual Abuse of a Minor” Ground and Provides Support on Other Crim-Imm Issues (June 8, 2017, IDP and NIP-NLG)
- Administrative Removal under 238(b): Questions and Answers (Feb. 16, 2017, IDP and NIP-NLG)
- Practice Alert: In Mathis v. United States, Supreme Court Reaffirms and Bolsters Strict Application of the Categorical Approach (July 1 2016, IDP and NIP-NLG)
- Mellouli v. Lynch: Further Support for a Strict Categorical Approach for Determining Removability under Drug Deportation and Other Conviction-Based Removal Grounds ( 2015, IDP and NIP-NLG)
- The Realistic Probability Standard: Fighting Government Efforts to Use It to Undermine the Categorical Approach (2014, IDP and NIP-NLG)
- Matter of Chairez-Castrejon I: BIA Applies Moncrieffe and Descamps to Clarify and Modify Its Views on Proper Application of the Categorical Approach (2014, IDP and NIP-NLG)
- Moncrieffe v. Holder: Implications for Drug Charges and Other Issues Involving the Categorical Approach (2013, IDP, NIP-NLG, and AIC)
- Descamps v. United States and the Modified Categorical Approach (2013, IDP and NIP-NLG)
Amicus Briefs
- Juarez v. Garland, 21-70888 (9th Cir. 2021): Brief of IDP et al in Support of Petitioner
- Amicus Brief filed with BIA challenging changes to modified categorical approach in light of Pereida v. Wilkinson (Amicus Counsel Stanford Immigrants’ Rights Clinic)
- Matthews v. Barr, 927 F.3d 606 (2d Cir. 2019): Brief of IDP and 6 public defender organizations in Support of Petitioner (Amicus counsel IDP)
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017): Brief of IDP, ILRC, and NIP-NLG in Support of Petitioner (Amicus counsel Wilmer Cutler Pickering Hale and Dorr LLP)
- Richards v. Sessions, 711 Fed. Appx. 50 (2d Cir. 2017): Brief of IDP and six public defender organizations in support of Petitioner (Amicus counsel IDP)
- Mathis v. United States, 136 S. Ct. 2243 (2016): Brief of AILA, IDP, NIP-NLG, and Individuals with Pending Immigration Appeals Raising the Question Presented in Support of Petitioner (Amicus counsel Orrick, Herrington & Sutcliffe LLP)
- Luna-Torres v. Lynch, 136 S. Ct. 1619 (2016): Brief of the NACDL, National Association of Federal Defenders, National Association for Public Defense, NIP-NLG, and IDP in Support of Petitioner (Amicus counsel Gibson, Dunn & Crutcher LLP)
- Mellouli v. Lynch, 575 U.S. 798 (2015): Brief of NACDL, IDP, and NIP-NLG Supporting Petitioner (Amicus counsel Wilmer Cutler Pickering Hale and Dorr LLP)