Using and Defending the Categorical Approach


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.

Challenging Divisibility: Litigation Strategies And Post-Mathis Case Law Survey

The resource is meant to provide support in making aggressive arguments related to indivisibility and the application of the strict categorical approach in the face of continued attempts to weaken it. The first part of the resource includes a primer on divisibility and important criminal law concepts related to case law research, and a discussion of litigation tips and strategies in making indivisibility arguments. The appendix case chart summarizes the divisibility analysis in every post-Mathis case published in the Second, Third, Fifth, Ninth, and Eleventh circuits.

Sample Motion to Reconsider/Reopen for Narcotic Overbreadth in Second Circuit

On February 21, the Second Circuit issued its final decision in United States v. Gibson, 60 F.4th 720 (2d Cir. 2023) clarifying that New York’s definition of “narcotic” is overbroad as of January 23, 2015. This applies to Article 220 controlled substance offenses that involve a “narcotic drug” element. To learn more and download a sample motion to reconsider and reopen/terminate, click here.

Practice Advisories

Amicus Briefs