Friday, June 4, 2021

Teaching the Categorical Approach: The Cute Kittens Method

For the past two days, I've been attending the National Immigration Project of National Lawyers Guild's 2021 Annual Pre-AILA Crimes & Immigration Seminar. (Thanks, Ming, for letting me know about it!)

The conference introduced me to a new way of teaching the categorical approach to removal based on criminal offenses. As I've mentioned before, I habitually outsource teaching of the categorical approach to my internet "guest speaker" Prof. Maureen Sweeney (Maryland), by using her wonderful youtube videos to introduce the subject.

The NIPNLG approach, which I learned today may have originated from the ILRC, involves pictures of kittens. And who doesn't love cute pictures of kittens?

Here's the pitch: Imagine that the federal removal offense is a box. The first thing you need to do is identify the dimensions of that box. Now imagine that the state statute of conviction is a cat. You need to identify the dimensions of the cat. Finally, see if the cat will fit in the box.

Screen Shot 2021-06-04 at 6.23.27 PM

If the cat is too big for the box, then the state statute is overbroad and cannot be the basis for removal. But if the kitten fits snugly within the box or has room to spare, then there is a categorical match and the noncitizen is removable.

Screen Shot 2021-06-04 at 6.23.32 PM\

Is this really any different from overlapping ovals, which has been my go-to for the past many years? No. But if kittens make students sit up and pay attention, and I think they will, I am definitely abandoning my ovals in favor of cats.


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Sorry, Kit. But, I think the BIA's approach is just to see what result is least favorable to the respondent. Then, fill in the blanks to get to that result. How many "categorical approach" cases have respondents won before the AG or the BIA over the past four years? Almost none (could be none). But, they get reversed by the Courts of Appeals on mis-applications of the categorical approach on a regular basis. We need YOU, and others like you on the BIA and running EOIR! What we have now is a pro-enforcement, anti-immigrant, non-expert farce that Garland continues to ignore!

Posted by: Paul W. Schmidt | Jun 5, 2021 11:36:14 AM

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