Criminal Convictions in Removal Proceedings: Build the Record Before Applying the Categorical Approach

Review the primary official source.

Immigration consequences often turn on what a criminal statute necessarily required, not on the broadest narrative of the arrest. Before analyzing removability, detention, relief, or a waiver, obtain the complete disposition and identify the statute, version, elements, plea, judgment, and sentence. A docket label or police summary is rarely enough.

Create a disposition packet for every case

Collect the complaint or information, amended charges, plea form, minute order, transcript if needed, judgment, sentence, probation terms, custody credits, dismissal or vacatur orders, and the statute in effect on the offense and conviction dates. Compare names, birth dates, and case numbers to confirm identity.

Record immigration advice, post-conviction proceedings, and the stated legal basis for any modification. Immigration law may distinguish a merits-based vacatur from a change made solely to avoid immigration consequences.

Identify the federal generic offense and comparison rule

Write the immigration provision and the generic federal definition before reading the conduct narrative. Then compare the minimum conduct criminalized by the state statute with the generic definition under controlling precedent.

If the statute is indivisible and broader, the inquiry generally ends without consulting extra documents to narrow the conduct. If it lists alternative elements and is divisible, the modified categorical approach may permit a limited record to identify the element of conviction.

Use only the permissible record for the permissible question

The modified approach is a tool for identifying which statutory alternative formed the conviction; it is not a license to retry the criminal case. Police reports, probable-cause narratives, prosecutor assertions, and sentencing allegations may fall outside the permitted record for a categorical question.

Different immigration provisions can use categorical, circumstance-specific, conduct-based, admission-based, or sentence-based rules. State the governing method for the particular charge or bar rather than applying one framework mechanically.

Keep removability, custody, and relief analyses separate

A conviction can be asserted as a removal ground, a mandatory-detention trigger, a bar to relief, a discretionary factor, or several of these. Each use may involve different statutory language and burdens.

Prepare an issue chart for inadmissibility, deportability, aggravated felony, moral turpitude, controlled substance, domestic violence, firearms, sentence, cancellation, asylum, withholding, waivers, naturalization, and detention as relevant. Do not let a conclusion in one column silently decide the others.

What this means: practical action checklist

• Obtain certified charging, plea, judgment, sentence, and modification records.
• Identify the exact statute and version.
• Write the federal generic definition and controlling comparison rule.
• Determine divisibility before consulting the limited record.
• Analyze removal, custody, relief, and discretion in separate columns.

For broader strategy, review the firm’s deportation-defense practice and its primary-source Case Library.