Practice Advisory: "Realistic Probability" in Immigration Categorical Approach Cases

IDP, NIP/NLG, June 3, 2021

"The concept of “realistic probability” as an aspect of the categorical approach first emerged in 2007 in a Supreme Court decision, Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007). In that decision, and in Moncrieffe v. Holder, 569 U.S. 184 (2013), and subsequent categorical approach cases, the Court has treated realistic probability as being applicable to determining whether a statute of prior conviction is overbroad only where the claimed “minimum conduct” is not plainly covered by the statute’s text or state case law interpreting the statute’s text, and is otherwise truly hypothetical. In such a case, a further showing is required to demonstrate that the convicting jurisdiction actually prosecutes that minimum conduct. In recent years, the concept of realistic probability as an additional requirement has become an increasingly frequent topic of litigation, even as the Court has repeatedly affirmed the elements-based categorical approach. The Board of Immigration Appeals (“BIA”) has gone beyond the Supreme Court’s instruction in several published opinions and, except when prohibited by a circuit court opinion, now requires a realistic probability showing even when the express language of a statute of conviction covers non-generic conduct. Several circuit courts have rejected the Board’s approach and apply realistic probability consistently with the Supreme Court’s instructions in Duenas-Alvarez and Moncrieffe—that is, only where there is true uncertainty as to whether a statute of prior conviction reaches the claimed minimum conduct. In that majority of circuits, the Board’s decisions are inapplicable. Only two circuits have ruled consistently with the Board’s “actual case” requirement. This practice advisory discusses the origins of realistic probability in immigration law, national case law on realistic probability, and litigation issues currently before the immigration agencies and federal courts.

Released under a Creative Commons Attribution 4.0 International License (CC BY 4.0). The authors of this advisory are Andrew Wachtenheim, Leila Kang, and Nabilah Siddiquee of the Immigrant Defense Project (IDP), and Khaled Alrabe of the National Immigration Project of the National Lawyers Guild (NIPNLG). This advisory is an update and revision to the prior version, IDP & NIPNLG, The Realistic Probability Standard: Fighting Government Efforts to Use It to Undermine the Categorical Approach (2014), available at https://immigrantdefenseproject.org/wp-content/uploads/2014/11/realisticprobability-advisory.pdf. Practice advisories identify select substantive and procedural immigration law issues that attorneys, legal representatives, and noncitizens face. They are based on legal research and may contain potential arguments and opinions of the authors. Practice advisories do not replace independent legal advice provided by an attorney or representative familiar with a client’s case."