The Categorical Approach to Removal post Loper-Bright

Immigration law’s effect on national security and foreign policy has long provided insulation from judicial review.[i] Until recently, Chevron, U.S.A., Inc. v. National Resource Defense Council, Inc. added another layer of protection, requiring courts to defer to the statutory interpretations of agencies, “especially in the area of immigration.”[ii] Historically, Chevron required deference to interpretations of the Immigration and Nationality Act [INA] by the Board of Immigration Appeals [BIA] when determining whether noncitizens had committed aggravated felonies or crimes involving moral turpitude [CIMTs].[iii]

Noncitizens who commit aggravated felonies or CIMTs are deportable.[iv] Those who commit aggravated felonies also face a permanent bar to reentry.[v] To determine whether a noncitizen convicted of a state-level crime has committed either offense, courts employ the categorical approach.[vi] Under the categorical approach, a state-level crime is considered an aggravated felony or a CIMT if conviction under the statute necessarily equates to the generic offense defined in the INA.[vii]

Applying the categorical approach consists of three steps: 1). examining the elements of the offense listed under the INA; 2). examining the elements of the state statute; and 3). determining whether every possible conviction under the state statute fits within the INA’s generic definition.[viii] Accordingly, state statutes that encompass a broader array of conduct than the INA do not constitute aggravated felonies or CIMTs.[ix]

While the BIA historically enjoyed deference in their interpretation of the INA, the Supreme Court’s landmark decision in Loper-Bright v. Raimondo has shifted control over the categorical approach to the courts.[x] With it has come stricter, textualist interpretations of INA offenses, which, in turn, has begun to prevent state statutes from categorically matching to them.[xi]

Consider how this analysis is currently playing out in the Eighth Circuit. In Quito-Guachichulca v. Garland, the BIA had found that a Minnesota statute, under which Quito-Guachichulca was convicted for third-degree criminal sexual conduct, was a categorical match for “rape” under the INA, making him deportable for commission of an aggravated felony.[xii]

Quito-Guachichulca appealed to the Eighth Circuit, which recognized that “deference to the [BIA]... is a relic of the past” and held that the Minnesota statute was, in fact, too broad to constitute a categorical match as an aggravated felony.[xiii] The court reasoned through a textualist, originalist methodology that “rape” under the INA “excludes” certain conduct that “Minnesota’s version ... includes.”[xiv]

In contrast, some circuits applying the categorical approach are continuing to show respect to BIA interpretations under Skidmore v. Swift & Co., using them as a guidepost for their own INA interpretations.[xv] In Skidmore, the Court held that agency decisions “constitute a body of experience and informed judgment” requiring varying degrees of respect depending on the thoroughness, validity, and consistency of their reasoning.[xvi]

Skidmore is fueling the categorical approach methodology currently employed in the Ninth Circuit.[xvii] In Lopez v. Garland, for instance, the court showed respect to a BIA interpretation of the INA that found that theft statutes constituted CIMTs when they “require the government to prove the defendant acted with an intent to permanently deprive an owner's property or substantially erode the owner's property rights.”[xviii] In doing so, the court affirmed the BIA’s holding that a noncitizen’s conviction under a petit larceny ordinance rendered him deportable for commission of a CIMT.[xix]

As the removal of noncitizens engaged in criminal activity continues to be at the forefront of the current administration’s agenda, courts will need to decide how much, if any, respect they show BIA interpretations when applying the categorical approach.[xx] The Eighth Circuit’s approach of making BIA deference a “relic of the past” seems to be most consistent with Loper Bright and Skidmore, which reflect the understanding that expertise yields the most effective statutory interpretations. While courts may be reluctant to infringe on the executive’s national security and foreign policy agenda, the application of the categorical approach in removal proceedings uniquely involves issues of criminal law and requires nuanced textual expertise that can carry severe consequences for noncitizens. This is precisely the type of analysis that the judiciary, rather than the BIA, is expert in.

     As global concern surrounding the current administration’s deportation efforts begins to mount, embracing the Eighth Circuit’s non-deferential approach could ease tension by limiting removals through more precise interpretations of the INA.[xxi]

Austin Wysota is a staff member of Fordham International Law Journal Volume XLIX. 

[i] See Ping v. United States, 130 U.S. 581, 609 (1889) (holding the political branches have the inherent power to exclude noncitizens); See also Kerry v. Dinn, 576 U.S. 86, 86-87 (2015) (upholding the doctrine of consular absolutism in visa decisions).

[ii] See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). See also I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 416 (1999).

[iii] See, e.g. Bakor v. Barr, 958 F.3d 732, 735 (8th Cir. 2020).

[iv] See I.N.A. § 237(a)(2)(A)(i),(iii).

[v] See I.N.A. § 212(a)(9)(A)(ii).

[vi] See Lopez v. Garland, 116 F.4th 1032, 1038-39 (9th Cir. 2024) (applying the categorical approach for CIMTs); Quito-Guachichulca v. Garland, 122 F.4th 732, 735 (8th Cir. 2024) (applying the categorical approach for aggravated felonies).

[vii] See Lopez, 116 F.4th at 1039.

[viii] See id.

[ix] See id.

[x] See Loper-Bright Enter. v. Raimondo, 603 U.S. 369, 400 (2024).

[xi] See Quito-Guachichulca, 122 F.4th at 736.

[xii] See id. at 734.

[xiii] Id. at 735.

[xiv] Id. at 739.

[xv] See Lopez, 116 F.4th at 1039.

[xvi] Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

[xvii] See Lopez, 116 F.4th at 1039.

[xviii] Id. at 1041.

[xix] See id. at 1046.

[xx] See Exec. Order No. 14159, 90 Fed. Reg. 8443 (2025).

[xxi] See Jamey Keaten, U.N. refugee agency chief suggests that US deportation practices violate the law, pbs news (Oct. 7, 2025 12:51 PM), https://www.pbs.org/newshour/world/u-n-refugee-agency-chief-suggests-that-us-deportation-practices-violate-the-law).

This is a student blog post and in no way represents the views of the Fordham International Law Journal.