Cabeda v. Attorney General, decided by the Third Circuit Court of Appeals on August 18, 2020

Jersey City, New Jersey – The Categorical Approach is a commonly misunderstood and misapplied body of law that frequently results in strange or undesirable outcomes. In the immigration context, the categorical approach requires comparing the statute of a state conviction to the most similar federal statute or generic crime to determine if the state conviction qualifies as an aggravated felony under immigration law. The categorical approach requires a comparison only of the elements of the crimes; it does not consider what the accused actually did or did not do. Where a state statute is a categorical match to a federal crime, meaning where 100% of the time a person convicted of the state crime would also be convicted under the federal crime, the state conviction is a conviction for immigration purposes. Where there is a scenario that a person could be convicted under the state statute, but not under the federal equivalent, any conviction under the state statute is not a conviction under immigration law. Sometimes the awkwardness of the outcome is subtle; sometimes it is not.

Cabeda v. Attorney General, decided by the Third Circuit Court of Appeals on August 18, 2020, is an example of when the awkward outcome is not subtle. The court stated, “It’s a fair bet that this formalistic framework may result in some counterintuitive and hard-to-justify outcome. And so it does here.” The court also wrote, “It is a surpassingly strange result but required by controlling law.”

Ms. Cabeda was convicted in Pennsylvania court of Involuntary Deviate Sexual Intercourse as the result of her guilty plea in which she admitted having sex with a teenager on multiple occasions. She was placed in removal proceedings and charged with having committed an aggravated felony for a crime of child abuse. Cabeda argued in immigration court that the statute of conviction was not a categorical match to the federal definition of child abuse. The immigration judge rejected her argument. The Board of Immigration Appeals also rejected the argument, but the Third Circuit, agreed with her. The court analyzed that the federal definition of sexual abuse of a minor requires a knowing mens rea (mental state), but the Pennsylvania crime required only a mens rea of recklessness, a lower degree of mental state, and they therefore care not a categorical match.

The immediate implications of this decision are broad in the Third Circuit, as the rationale would apply to other statutes, in Pennsylvania, New Jersey and Delaware, where sexual crimes against a child do not require a knowing mental state. There also may be long-term implications. As more state statutes are found not to be deportable offenses, or more convictions lead to these uncomfortable results, Congress or the Supreme Court may become more inclined to act to alter, restrict or eliminate the categorical approach.