A Particularly Serious Exception to the Categorical Approach

Authors

Fatma E. Marouf, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

7-2017

Journal Title

Boston University Law Review

ISSN

0006-8047

Abstract

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet, the Board of Immigration Appeals has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examination of the elements with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offenses are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious crime determination to promote greater uniformity and provide the predictability necessary to make informed pleas. Recent Supreme Court decisions, as well as a 2015 opinion by the Attorney General, support this argument by stressing that the use of the word “convicted” in the Immigration and Nationality Act triggers a categorical analysis. Although the United Nations High Commissioner for Refugees has interpreted the particularly serious crime bar as requiring an individualized analysis, this Article argues that the categorical approach better protects the High Commissioner’s underlying concerns of consistency and fairness.

First Page

1427

Last Page

1485

Num Pages

59

Volume Number

97

Issue Number

4

Publisher

Boston University School of Law

Recommended Citation

Fatma E. Marouf, A Particularly Serious Exception to the Categorical Approach, 97 B.U. L. Rev. 1427 (2017).
Available at: https://scholarship.law.tamu.edu/facscholar/876

File Type

PDF