Tuesday, March 13, 2012

Categorical and Modified Categorical Analysis: Introduction


Ever since Homeland Security began deporting criminal aliens as a priority in the absence of bi-partisan comprehensive immigration reform, the importance of this tool to the criminal and immigration practitioner has never been higher.

I had a client who retired after many years of honest work in a trade, where he served as union steward. He was a husband, father and grandfather. When he went to the social security office to apply for benefits, he was erroneously informed that he had to renew his green card because it was so old. Being a law-abiding citizen, he did as he was told and applied for a green card renewal.

The difficulty was that he had not always been law-abiding. As a young man he had been something of a tough. He got into trouble. He served time. One of the crimes for which he was convicted had a nasty ring to it, assault with intent to commit involuntary sexual contact. He went to trial, was found guilty after a trial and was given probation with a few months of incarceration in the county jail. He did the time, completed the probation and moved on to the exemplary life he lived from that time until now.

That was some 40 years ago.

When he applied for the green card renewal, this nasty sounding crime came up on the computer. It took several years, but ICE finally caught up with him. One day, after an evening of working on the new retirement house and a good night’s sleep, he was swept up by the police in front of his distraught wife and taken to an immigration detention facility, charged with an aggravated felony and denied bond. He was told he was on the way out of the country. No one could save him.

The categorical and modified categorical analysis did. The immigration judge ruled that the state law crime of which he was convicted failed the analysis, and therefore the conviction did not count as a deportable offense. He was released. Proceedings were terminated. He got his green card and his former life back. Six months later he became a citizen.

In the next several installments, we are going to visit the categorical and modified categorical analysis and discuss its origins, outlines, applications, and usefulness in both immigration law and federal criminal sentencings, where it also applies.

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