New opinion: Third Circuit holds that categorical approach can’t look beyond the most similar federal analog

Rosa v. A.G.—immigration—reversal—Fuentes

Today the Third Circuit ” address[ed] an issue of first impression under the Immigration and Nationality Act … that carries implications beyond immigration law: whether the categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, permits comparison with any federal crime, or only the ‘most similar’ one.” The Board of Immigration Appeals compared elements to multiple crimes. Specifically, the BIA applied the categorical approach by comparing the elements of man’s state convictions for drug distribution near a school not only to the federal distribution-near-a-school statute, but also to the statute criminalizing distribution generally. Today, the Third Circuit held that this was error because the categorical approach is limited to the most similar federal analog, granted the petition for review, and remanded.

Joining Fuentes were McKee and Shwartz. Arguing counsel were Derek Decosmo of DeCosmo & Rolon for the petitioner, Matthew George of the DOJ for the government, and Eric Mark of Newark for AILA as amicus.