Common Tools of Statutory Construction for Criminal Removal Grounds

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).