Practice Advisory: Common Tools of Statutory Construction for Criminal Removal Grounds

American Immigration Council and the Federal Immigration Litigation Clinic of the James H. Binger Center for New Americans, University of Minnesota Law School, Nov. 28, 2023

"This practice advisory describes some of the common tools of statutory construction to assist practitioners in advocating for narrow definitions of generic criminal removal grounds before the Board of Immigration Appeals (BIA) and the U.S. courts of appeals. To determine whether a criminal conviction renders a noncitizen removable under federal immigration law, federal courts and the BIA generally employ the categorical approach. Under this approach, adjudicators consider whether the elements of the statute of conviction fall within—or “categorically match”—the “generic” federal definition of the corresponding removal ground. Identifying the elements of the generic definition generally requires construing the relevant text of the Immigration and Nationality Act (INA). To do this, adjudicators employ “the traditional tools of statutory interpretation.” While the focus of this advisory is construing criminal removal grounds, most of these statutory construction tools can be used when interpreting state and federal criminal statutes and other, non-criminal provisions of the INA and other civil statutes. The advisory discusses statutory construction and the Supreme Court’s Chevron decision (Part II); traditional statutory construction tools that can be used when construing “generic” criminal removal grounds (Part III); and how to respond to government arguments that a proposed definition will not lead to enough deportations (Part IV). Copyright (c) 2023, the American Immigration Council and the Federal Immigration Litigation Clinic of the James H. Binger Center for New Americans, University of Minnesota Law School. Click here for information on reprinting this practice advisory. The advisory is intended for authorized legal counsel and is not a substitute for independent legal advice provided by legal counsel familiar with a client’s case. Counsel should independently confirm whether the law has changed since the date of this publication. The authors of this practice advisory are Emma Winger, Suchita Mathur, Seiko Shastri, Mollie Ahsan, and Nadia Anguiano. The authors would like to thank David Zimmer, John Bruning, Khaled Alrabe, Linus Chan, and Mark C. Fleming for their review and comments. Special thanks to Chloe Chambers for cite checking."