Find a Unicorn and Slay a dragon: The Categorical Approach Circa 2023

I have spent the past decade or more pursuing answers to the most difficult questions in life, such as “is cocaine really cocaine? “, and “what happens if the drug statute does not include an element of criminal intention?”

This has (in my opinion) led to some cheap shots. The Board of Immigration Appeals flagged a case that I was co-representing several years ago for supplemental, and Amicus Briefings on the issue of cocaine definitions. The federal definition is different from Florida’s cocaine statute. The BIA wanted to know more before deciding whether this semantic definition was scientifically and legally valid. We delved into the molecular realm of “stereoisomers,” “nongeometric diastereomers,” and amicus-curiae to demonstrate that Florida’s definition of cocaine was actually broader and more meaningful than the federal government’s. We also showed that Florida prosecutors do not care which type of cocaine was found during a drug bust. They always charge the defendant, in this case our client, “generically” for possessing “cocaine.”

The BIA’s decision was a rejection of our earnest efforts. It was unpublished and included a concurrence opinion that used the word “absurd” and referred to the TV show Breaking Bad (“I am pretty certain that Walter White did not ask [this] question”) and concluded that “at some point common sense must prevail and we have gone way beyond that stage.” This is frustrating because the concurrence stated “I am not a chemist so the question…is way, far beyond my level,

The U.S. Court of Appeals ruled in the same way, but this time was published with similar prose. The court used a metaphor that it thought was helpful, stating that our theory was similar to arguing against a criminal code that protects animals being unfairly applied to acts that involve… (wait)… dragons. We would need to prove the existence of “dragons”, i.e. non-generic coca molecules, and that prosecutions are filed for crimes involving them. Ouch.

In the five years since, many other courts have “gone there,” admitting that it mattersif states define cocaine, methamphetamine and ethylone in an unusual way. After our “cocaine’ loss, the Eleventh circuit followed this logic. They agreed that Florida “cannabis is not the federal “cannabis”, as the court could see the over-inclusiveness of the Florida definition. Soon after, I was part of AILA’s Amicus Team that helped determine that New York “cocaine” is not “cocaine,” before the Second Circuit when the Department of Justice filed for remand.

In the classic, “elements-based” categorical approach the courts compare the action (did the “burglary”, require an unlawful entry or remaining in a structure, that is part of the “generic” burglary?). The courts use the “elements based” approach to categorize crimes. They compare the actions (did “burglary require an unlawful entrance (or remain) in a building, which is part of the “generic burglary”?) The courts may also consider the locational aspect (did the offense state include jet skis and boat trailers as possible “burglaries” in addition to “structures and dwellings?”) This will help you determine whether the crime is necessarily. This method helps explain terms such as “theft,” “violence,” “, “minor,”, and , “firearm.” When a state criminal law either leaves out an element or includes options that are wider than the generic crime, immigration consequences do not apply. If the statutory text does not clearly demonstrate unusual overbreadth then defenders may still be able to win by identifying cases where the law was applied in a way that is unusual and non-generic, .

Remember that “elements based” is not always the best approach. The “fraud” aggravated felon is a good example of this. Courts have held, as highlighted in the “fraud”, that when the immigration statute sets a consequence for an offense “involving _______”, the crime can be subject to a “conduct-based inquiry,” wherein the consequence may be triggered based on what the defendant has done, and not by what the elements literally establish.

Many AILA members dedicate their practice exclusively to criminal defense, and use the categorical method. whole books and law review articles are written about the topic. It is important to keep abreast of current issues and to monitor the “issues to be watched” before the BIA or Courts of Appeals. AILA has dedicated an entire conference to. An initial panel of immigration experts will teach the categorical method in depth using a familiar model. The remainder of the day, however, will be novel. Experts will summarize the major lines of cases from every Court of Appeal so that attendees will gain an understanding of trends and possible copy-cat theories.

A theory, like the one about “cocaine”, can spread throughout the country. Losing can be painful, but I’ve learned that the right perspective is to see each case as part of a bigger movement. Earnest defense is about playing the long-game by raising and preserving every issue. The “theory,” however, is only new until someone succeeds with it. At that point, it becomes an “assault weapon” in the hands of every defender.

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AILA members interested in learning more about the categorical approach, your opportunity awaits at the Fall Conference: https://agora.aila.org/store/products/view/fall-cle-conference.