Immigration Article of the Day: Unpacking the Rise in Crimmigration Cases at the Supreme Court by Philip L. Torrey
Today’s immigration article of the day comes from Philip L. Torrey (Harvard). It’s Unpacking the Rise in Crimmigration Cases at the Supreme Court, N.Y.U Rev. of L. & Soc. Change, The Harbinger (2020). Check out the introduction:
Why has the Supreme Court recently granted more writs of certiorari in cases concerning the complex legal test known as the categorical analysis than it has in the last ten years? As background for the uninitiated, the categorical analysis is a tool used by adjudicators to determine when immigration consequences or federal sentencing enhancements are triggered by prior convictions. It is an often misunderstood—and consequently misapplied—analysis that has befuddled adjudicators for decades. The Supreme Court has decided to reaffirm and refine the legal test in several cases over the last few terms. The Court will have the opportunity to do so again this term in two cases, Pereida v. Barr and Shular v. United States. This Article examines several factors that may elucidate why the Court has recently taken a growing interest in the categorical analysis.1
The purpose of the categorical analysis is to preclude adjudicators from evaluating the factual basis of an underlying criminal conviction and instead simply determine whether the elements of a violated criminal statute trigger a statutory ground of removal. The test requires adjudicators to first determine if the elements of the criminal offense match the elements of the charged grounds for removal. If—and only if—those elements match, then the individual with a criminal conviction will face removal. The analysis is often the source of much confusion, as it can be incredibly difficult to determine the elements of a criminal offense, or the elements of a federal removal ground. When the language of the criminal and the immigration statute use different terms to define similar elements (e.g., “possession of a pistol” v. “possession of a firearm”), then the analysis becomes even more knotty. It is an intricate analysis, but the full contours of the categorical analysis are beyond the scope of this Article.
The analysis is a legal test that is well over a century old, but despite its long history,2 the Supreme Court has decided or granted certiorari in approximately only fourteen cases that relate to the application of the categorical analysis over the last decade. Ten of those cases have landed on the Court’s docket in just the last three terms. Why has there been such a significant increase in the number of cases concerning the categorical analysis finding their way onto the Supreme Court’s docket? Is there something more behind the developing circuit splits that have continually required the Supreme Court to intervene?
This Article discusses four factors that might be fueling the recent increase in categorical analysis cases at the Supreme Court. Those factors include (1) the versatile nature of the categorical approach, which means that the test is relevant in multiple areas of jurisprudence, which subsequently increases opportunities for circuit splits and Supreme Court review; (2) the increased volume of removal cases requiring application of the categorical analysis; (3) the increase in universal immigration representation programs that provide lawyers to individuals in removal proceedings who can push arguments concerning the categorical analysis’s applicability; and (4) recent Supreme Court decisions that have caused further confusion amongst the circuits, which creates a self-perpetuating need for further Supreme Court clarification.
It is likely that the reasons for the rise in these types of cases at the Supreme Court is the result of a complicated confluence of these and perhaps other factors. This Article proceeds by examining each above-mentioned factor and specifically analyzes why the factor is contributing to the rise in categorical analysis cases at the Supreme Court. While a deep dive into each of these factors is beyond the scope of this introductory Article, the topic is certainly ripe for further research.
-KitJ