Waiting for Descamps: How the Supreme Court Might Save Your Crim/Imm Case

"The U.S. Supreme Court will issue a decision in the spring 2013 term in a criminal case, Descamps v. United States, that may have very beneficial implications for immigration cases.  The issue relates to proper application of the categorical approach, which is the analysis used in federal proceedings to evaluate a prior conviction.  The hope is that, if the Court limits modification of the categorical approach as expected, several types of criminal statutes that now are considered to be “divisible” so that a judge can look to the record of conviction to determine the immigration consequences, will have no or fewer such consequences as a matter of law, regardless of the record.  For example, depending on the criminal statute of conviction, a good Descamps decision might mean that a client’s conviction for spousal battery, for broadly defined offenses regarding interaction with minors, or for some burglary offenses will no longer be a deportable or inadmissible offense. This update will briefly summarize the Descamps issue and identify types of cases that may benefit from a good decision." - Advisory authored by Kathy Brady, Immigrant Legal Resource Center and Isaac Wheeler, Immigrant Defense Project. The authors wish to acknowledge the helpful input of Dan Kesselbrenner of the National Immigration Project of the National Lawyers Guild and the research assistance of Heather Vail, Arthur Garfield Hays Civil Liberties fellow at NYU School of Law. Copyright ILRC, IDP 2013.