Photo Credit: Lee A. O’Connor, Understanding the Categorical and Modified Categorical Tests, The Federal Lawyer (Dec. 2010), https://www.fedbar.org/wp-content/uploads/2010/11/categoricalmodified-pdf-1.pdf.
Authored by: Elizabeth Mojica
The Immigration and Nationality Act (“INA”) outlines specific criminal offenses that, if a non-citizen is convicted of them, may result in their removal from the United States.[1] Qualifying criminal offenses include crimes of moral turpitude and aggravated felonies as well as various other crimes.[2] Issues often arise when a conviction based on state law is the grounds for a federal order of removal.[3] Courts must then determine whether the state conviction sufficiently meets the requirements outlined by the INA to support the grounds for removal from the United States.[4] This determination is typically made using the categorical approach.[5]
The categorical approach follows an element by element comparison to determine whether the state crime a non-citizen is convicted of sufficiently meets those of the federal offense.[6] In cases regarding offenses without a specified federal definition, generic definitions which may be derived from relevant federal statutes, case law, dictionaries, or the INA itself are used.[7] The comparison is solely between the elements of the state crime and the generic definition.[8] Therefore, the underlying facts and circumstances which led to the non-citizen’s conviction are disregarded.[9] However, when a conviction is based on a state statute including both removable and non-removable offenses then a modified categorical approach is applied.[10] The modified categorical approach reviews the record to determine whether the conviction supports removal.[11] Both the categorical approach and the modified categorical approach have occasionally called for a comparison with the state definitions at the time of conviction.[12] The question remains, however, as to whether the federal definition should be that which was in place at the time of conviction or that which was in place at the time of removal proceedings.[13]
The Board of Immigration Appeals (“BIA”) recently addressed this question in Matter of Jonalson, a case regarding a non-citizen’s state conviction based on a controlled substance offense for possession of marijuana.[14] The non-citizen filed a motion to terminate removal proceedings arguing the state definition of marijuana was over-broad when compared to the federal definition and therefore insufficient to constitute grounds for removal.[15] The immigration judge denied the non-citizen’s motion finding because at the time of the non-citizen’s conviction, the state defined marijuana more narrowly than federal law.[16] Once removal charges were adjudicated, however, the state defined marijuana more broadly.[17] The BIA reviewed de novo, applying the categorical approach, whether the non-citizen’s state conviction qualified for removal.[18]
As the BIA noted, when the issue is not disputed there is a presumption that the relevant comparison is the definitions in place at the time of conviction.[19] In addressing the dispute, the BIA referred to Second, Third, Ninth, and Eleventh Circuits’ rejections of the “time-of-removal argument in favor of using the time of conviction.” [20] The BIA’s decision is focused narrowly on the statutory interpretation issue created by the discrepancy and is an effort to promote certainty and predictability in future cases.[21] However, while Matter of Jonalson reflects the findings of four United States Courts of Appeals, others like the Fourth Circuit have differed.[22] Ultimately, the Second, Third, Ninth, and Eleventh Circuits will continue to rely on the time-of-conviction definitions. However, Matter of Jonalson arose in the First Circuit, which has not addressed the issue, and BIA decisions are not binding on circuit courts of appeals. Nonetheless, as the BIA noted, other circuits have also not addressed the issue. Therefore, while it is possible some circuits may follow suit to promote uniformity, it is likely others will continue to rely on the time of removal definitions which will create a circuit split the United States Supreme Court will need to address.
[1] See 8 U.S.C. § 1227(a) (“Any [non-citizen] . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the [non-citizen] is within one or more of the following classes of deportable [non-citizens.”); 8 U.S.C. § 1227(a)(2) (listing various deportable offenses for non-citizens).
[2] Id.
[3] Salinas v. Bondi, 131 F.4th 840, 843 (8th Cir. 2025) (challenging a removal order based on interpretations of state and federal definitions of marijuana); Rashid v. Mukasey, 531 F.3d 438, 447 (6th Cir. 2008) (applying the categorical approach to determine whether an offense constitutes an aggravated felony to qualify removal); Jaggernauth v. U.S. Att’y Gen. 432 F.3d 1346, 1353 (11th Cir. 2005) (determining whether a Florida conviction “constitutes a theft offense for purposes of the aggravated felony definition” to support grounds for removal).
[4] Ndungu v. Att’y Gen. U.S., No. 20-2562 (3d Cir. Jan. 13, 2025) (en banc) (illustrating the challenge of matching a state crime definition to the federal interpretation of crimes involving moral turpitude to sufficiently meet the grounds to support a removal order). See Crim-Imm Case Law Updates 2024, National Immigration Project (Dec. 16, 2024), https://nipnlg.org/sites/default/files/2024-12/2024_crim-imm-case-law-updates.pdf (outlining court updates from the BIA’s and the United States Courts of Appeals’ findings regarding the applications of the categorical approach to various state statutes).
[5] Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (“When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA.”); Salinas, 131 F.4th at 843 (explaining removal orders for state drug convictions “must use the categorical approach”); Bazan-Reyes v. I.N.S., 256 F.3d 600, 606 (7th Cir. 2001) (explaining the use of the categorical approach in matching state statutes to federal law).
[6] Salinas, 131 F.4th at 843; Soliman v. Gonzales, 419 F.3d 276, 279 (4th Cir. 2005) (explaining the application of the categorical approach in determining whether a conviction meets the grounds for removal).
[7] Moncrieffe, 569 U.S. at 190 (explaining the generic federal definitions are those which are “viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison”); Johnson v. U.S., 559 U.S. 133, 134 (2010) (stating the court will give a phrase its ordinary meaning where the federal statute has not provided a definition); see Office of the General Counsel, Categorical Approach Primer (2024) (explaining the various sources used to form the generic definition).
[8] Descamps v. U.S., 570 U.S. 254, 261 (2013) (“If the relevant statute has the same elements as the ‘generic’. . ., then the prior conviction can serve as . . . predicate; so too if the statute defines the crime more narrowly, because anyone convicted under that law is ‘necessarily. . . guilty of all the [generic crime’s] elements.’”).
[9] Moncrieffe, 569 U.S. at 191 (explaining the INA looks only at the offense the noncitizen is convicted of not the conduct which led to the conviction).
[10] Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev. 1669, 1760 (2011).
[11] Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 187 (2007) (explaining the modified categorical approach “permits the sentencing court ‘to go beyond the mere fact of conviction’); Batrez Gradiz v. Gonzales, 490 F.3d 1206, 1211 (10th Cir. 2007) (stating the modified categorical approach may look at “charging papers and jury instructions”).
[12] See Taylor v. U. S., 495, 576 (1990) (stating the definitions compared are those which are “now used in most States’ criminal codes”); Gonzalez, 549 U.S. at 183 (stating “[t]he term ‘theft offense’ in 8 U.S.C. § 1101(a)(43)(G) includes the crime of ‘aiding and abetting’ a theft offense, because the generic sense in which the term ‘theft’ is now used in state and federal law covers such aiders and abettors as well as principals.”).
[13] See Salinas, 131 F.4th at 845 (highlighting the uncertainty created by a time of removal review under the categorical approach); Jonalson, 29 I&N Dec. 20, 20 (B.I.A. 2025) (supporting a time of conviction review under the categorical approach).
[14]Jonalson, 29 I&N Dec. 20, 20 (B.I.A. 2025).
[15] Id. at 21.
[16]Id.
[17] Id.
[18]Id..
[19]Id. at 22.
[20] Id. at 22.
[21] Jonalson, 29 I&N Dec. 20, 22 (B.I.A. 2025).
[22] See Kelsey Mellan, Fourth Circuit Upholds Removal Order and Sentencing Determination, Wake Forest L. Rev. Blog (Jan. 26), https://www.wakeforestlawreview.com/2017/01/fourth-circuit-upholds-immigration-removal-and-sentence-as-constitutional/.
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