“Rescue us from the morass of the categorical approach.”

For purposes of sentencing and immigration, federal courts must often categorize prior convictions from state courts to see if they qualify as “aggravated felonies” or “violent felonies.” The “categorical approach” is the method established by the Supreme Court that looks only at the elements of the crime under state law, not what the perpetrator actually did. It asks if it is possible to commit that crime in a way not included in the “generic” definition of the crime.

Concurring in an immigration case, USCA9 Judge Susan Graber “write[s] separately to add my voice to the substantial chorus of federal judges pleading for the Supreme Court or Congress to rescue us from the morass of the categorical approach. [Citations.] The categorical approach requires us to perform absurd legal gymnastics, and it produces absurd results.”

Immigration law provides for the deportation of aliens who commit “aggravated felonies.” That is an eminently sensible rule, but the devil is in the details. Is robbery an aggravated felony? Of course. If asked to name aggravated felonies off the top of my head, I would begin with murder, rape, and robbery. The long list of crimes deemed aggravated felonies in 8 U.S.C. §1101(a)(43) does not include robbery as such, though. It does include crimes of violence in paragraph (F), defined as involving an element of use or threat of force. It also includes theft offenses, in paragraph (G), if punished by a sentence of at least one year.

In Lopez-Aguilar v. Barr, No. 17-73153, the government sought to deport an alien convicted of robbery in Oregon. The violent felony provisions seems most directly applicable. The use of force that is the essence of robbery dovetails with the federal definition of violent crime. However, the Board of Immigration Appeals overruled the Immigration Judge’s determination that this was a violent felony. The Ninth Circuit only mentioned this point in a footnote. The issue before the Ninth was whether the deportation could go forward under the theft alternative.

So we go through the exercise of comparing the elements of the Oregon robbery statute with the elements deemed to constitute “generic theft.” If the state offense is defined more broadly than the generic offense, it doesn’t qualify, even if there there is no doubt that the perpetrator did commit the generic offense.

The Ninth, other circuits, and the BIA have defined “generic theft” to be “taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” The Supreme Court referred to this definition as widely accepted in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007), although the details were not at issue in the case. It strikes me as quite wrong. Except for the nonpermanence extension, this is the common-law definition of larceny. The whole point of the unified theft statutes in force in most states is to eliminate the common-law distinctions between larceny, embezzlement, and theft by false pretenses and treat them all the same.

Oregon defines robbery, in essence, as theft plus force, consistent with the general definition of the crime in American criminal law. That knocks it out of the “aggravated felony” category, says the Ninth, because it could include the crime of inducing a person to consent to handing over property via deceit, i.e., theft by false pretenses. And how do you commit that crime by force in the real world? That is what Judge Graber considers an absurd result, and I agree.

There is support on the Supreme Court for abandoning the categorical approach. See this post from 2018. A complete solution requires action by Congress, though. Aside from the “categorical” problem, the substantive definitions of the “aggravated felony” and “violent felony” both need work, as I have noted before. Only Congress can do that. The chances of fixing this problem in the current Congress seem remote, though. Maybe next year.