Tuesday, January 26, 2016
Cesar Cuauhtémoc García Hernández’s CrImmigration.com blog recently posted a helpful analysis of United States v. Mathis, a categorical approach case for which the Supreme Court recently granted cert. Nicholas Anderson and Linus Chan at the University of Minnesota write in the post that although Mathis is a case involving the application of the sentencing enhancement provisions of the Armed Career Criminal Act (ACCA), the case also has direct implications for the application of the categorical approach in cases involving noncitizens facing the immigration consequences of criminal convictions. “Despite not featuring an immigrant or even immigration law directly,” write Anderson and Chan, the case “will have a significant impact on anyone facing removal from the United States based on a criminal conviction.”
The case involves how the courts should interpret “means” and “elements” when applying the categorical approach. The distinction between means and elements ultimately affects whether courts should be permitted to apply the “modified categorical approach” – in other words, whether adjudicators may examine the record of conviction in a particular case to determine whether immigration consequences or sentencing enhancements are triggered – when a pure statutory analysis does not yield the full answer. By way of background, the Supreme Court’s decision in Descamps v. United States, 133 S.Ct. 2276 (2013) explains the relationship between elements, means, divisibility, and the modified categorical approach, but did not fully clarify what it means for a statute to contain an “element” versus a “means” to violate a criminal statute.”
As Anderson and Chan note, the Ninth Circuit, Fourth Circuit, and BIA have already addressed the question of means versus elements, but the Eighth Circuit (the same Circuit whose categorical approach analysis was overturned by the Supreme Court in Mellouli v. Lynch, 575 U.S. __ (2015) decided last term), came to a different conclusion.
In particular, the Ninth Circuit’s recent en banc opinion in Almanza-Arenas v. Lynch, Nos. 09-71415, 10-73715 (9th Cir. Dec. 28, 2015) contains an extensive analysis of the elements-means distinction. There, the Court found that California Vehicle Code 10851(a) (vehicle theft) is an indivisible statute, not a crime involving moral turpitude and not subject to the modified categorical approach. Section 10851(a) criminalized conduct that both would constitute a CIMT (permanently taking a vehicle) and conduct that would not constitute a CIMT (temporarily taking a vehicle). Thus, under state law, the “two forms of intent are alternative means of accomplishing the same crime rather than two separate crimes.” (For a video that explains means and elements, see Maureen Sweeney’s excellent online description of this topic).
I hope that Supreme Court will follow the Ninth Circuit’s lead in its consideration of the means-elements distinction. But the concurring opinion (written by Judges Owens, Tallman, Bybee and Callahan) in Almanza-Arenas is also worth reading, both because its biting criticism of the categorical approach illustrates the contentiousness of the categorical approach’s contours in the federal judiciary, and because its broader critique of the statutory framework giving rise to categorical approach litigation raises a broader point with which many advocates will agree. The concurrence warns that “[t]he bedeviling ‘modified categorical approach’ will continue to spit out intra- and inter-circuit splits and confusion,” and that “a better mousetrap is long overdue.” Despite its arguably unwarranted critique of the majority’s approach, the concurrence makes the valid point that “we instead should look to a more objective standard, such as the length of the underlying sentence, before deciding if someone should be removed from our country.”
Rebecca Sharpless has similarly argued for a “bright-line trigger” for deportation. In Clear and Simple Deportation Rules for Crimes: Why We Need Them and Why It’s Hard to Get Them, 91 Denv. U. L. Rev. 933 (2015), she advocates for the current complex framework governing the immigration consequences of crime to be replaced with a rule in which the litmus test for deportation is the existence of a prior conviction for which an individual has been imprisoned for five years or more.