The categorical and non-categorical approaches are methods used for inadmissibility and deportability in immigration law. The categorical approach compares a state statute to the federal equivalent to determine whether it is a deportable offense. This takes place without resorting to any outside records. The determining factor is whether the state statute is broader than the federal statute. If the state and the federal statutes match, then the statute is a deportable offense. If not, the modified categorical approach will be used.
A divisible statute is a law that includes various offenses. A divisible statute allows a court to reach beyond the statute to determine whether a statute is deportable. The court would go beyond the statute, to the record of conviction and police reports, to determine the individual’s conduct to ascertain deportability.
Under INA 101(a)(48)(B), any crimes or conviction after September 30,, 1996 may form a basis for removal. Any time of incarceration or confinement ordered by a judge may subject someone to deportation. Even suspended sentences may be used for immigration purposes. A sentence that is vacated, even for immigration purposes, the new sentence will be used to determine deportability. Matter of Cota, 23 I&N Dec. 849 (BIA 2005). However, an immigrant may not collaterally attack his conviction in immigration court and should do so in criminal proceedings.
In Padilla v. Kentucky, the United States Supreme Court ruled that a criminal attorney must inform a client of the immigration consequences of his plea.
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