A Particularly Serious Exception to the Categorical Approach

IntroductionUnder the Immigration and Nationality Act ("INA"), a noncitizen facing deportation who demonstrates a greater than fifty percent chance of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion may be eligible for a form of relief called "withholding of removal."1 The Refugee Act of 1980 incorporated withholding of removal into the INA in order to comply with the international obligation of nonrefoulement under the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (the "Refugee Convention" and the "Protocol," respectively).2 This obligation prohibits the United States from sending someone to a country where her life or freedom would be threatened.3 There are, however, certain exceptions to this prohibition. If it is determined that "the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States," then the person is barred from withholding of removal and ordered deported despite a potentially serious risk of persecution or death.4 This statutory provision mirrors the language of the Refugee Convention and is commonly known as the "particularly serious crime" bar.5The test currently used by the Board of Immigration Appeals ("BIA") to determine whether the particularly serious crime bar applies combines an examination of the elements of a crime with an inquiry into some of the individualized facts.6 This approach is inconsistent with the categorical approach for analyzing convictions, which focuses on the elements of the crime. Several recent Supreme Court decisions have addressed the categorical approach, clarifying various splits among the courts of appeals regarding how this approach should be applied and emphasizing the importance of the statutory term "convicted" in triggering a categorical analysis.7 In light of these decisions, an April 2015 opinion by Attorney General Eric Holder vacated an earlier decision by Attorney General Michael Mukasey that had permitted departures from the categorical approach for crimes involving moral turpitude ("CIMTs"); CIMTs are both a ground of deportability and a bar to certain forms of relief from removal under the INA.8 The new opinion underscores that the word "convicted" requires examining the elements of a crime rather than the underlying facts.9This Article argues that the categorical approach should also be applied to the particularly serious crime bar, which uses the word "convicted" but, strikingly, has never been subject to this analysis. The BIA has stated in dicta that the categorical approach does not apply to the particularly serious crime determination because the latter is discretionary.10 Yet appellate courts have not consistently treated this determination as discretionary, nor have most of them explicitly addressed the question of whether the statutory language requires a categorical analysis in light of recent Supreme Court cases.11 Thus, there remains an open legal question about whether the categorical approach should be applied to the particularly serious crime bar. Furthermore, even if courts decide that a categorical analysis is not required, this Article argues that the BIA should adopt this approach in order to promote uniformity and predictability.Part I of this Article explains the categorical approach, discussing the significance of the statutory term "convicted" under recent Supreme Court decisions and in the Matter of Silva-Trevino. Part I then discusses the BIA's current test for determining whether the particularly serious crime bar applies and how that test emphasizes the elements of an offense, yet deviates from the categorical approach. One of the main problems with the current test is that the BIA has never identified specific elements that are required for a conviction to constitute a particularly serious crime. …