The categorical approach
An immigration judge deciding whether your conviction is a crime involving moral turpitude, an aggravated felony or a drug offense does not ask what you did. The judge reads the statute you were convicted under, lists what the prosecution had to prove, and compares those elements to the federal definition. If the least serious conduct the statute punishes falls outside that definition, the conviction does not match, whatever the police report says. That method is the categorical approach, and it is the reason the wording of a plea matters more than the story behind it.
Current as of October 2026. We re-check this page regularly and after any rule change.
Every ground of removal on this site is a comparison. On one side is the federal definition: a crime involving moral turpitude, a theft offense, a crime of violence, a violation of a law relating to a controlled substance. On the other side is the statute you pleaded to. The categorical approach is the set of rules for making that comparison, and because a plea is drafted before the comparison is ever made, the rules decide what a defense lawyer should ask for. This page explains the method. The grounds it is applied to are on the crimes and removal page.
Elements, not facts
The Supreme Court set the rule in three cases: Moncrieffe v. Holder, 569 U.S. 184 (2013), Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 579 U.S. 500 (2016). The immigration judge compares the elements of the offense of conviction, meaning the things the prosecution had to prove to convict, with the generic federal definition of the ground. The judge does not ask what you did. The judge asks what the statute requires, and whether the minimum conduct the statute criminalizes would fit the federal definition. If the least serious thing a person could be convicted of under that statute is outside the definition, the conviction does not match. Nothing in the arrest report, the victim's statement or your own account changes that answer.
The cases on this site show what the rule does in practice.
- In Moncrieffe, a state marijuana distribution conviction was not an illicit-trafficking aggravated felony, because the statute's minimum conduct was sharing a small amount for nothing, which is a federal misdemeanor.
- Under Lopez v. Gonzales, 549 U.S. 47 (2006), a state drug felony is illicit trafficking only if the offense would be a felony under the federal Controlled Substances Act. The state label does not matter.
- Under Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017), where a sexual offense turns solely on the victim's age, the federal definition of sexual abuse of a minor requires a victim younger than 16. A statute that reaches a victim of 17 is broader than the definition.
- Under Johnson v. United States, 559 U.S. 133 (2010), "physical force" in the crime-of-violence definition means violent force. A statute satisfied by offensive touching is broader. Under Leocal v. Ashcroft, 543 U.S. 1 (2004), an offense with a negligence mental state is not a crime of violence at all.
- Under Luna Torres v. Lynch, 578 U.S. 452 (2016), the comparison is to the substantive elements. A state offense can match a listed federal statute even though the state version lacks the federal interstate-commerce element.
Whether an offense is a crime involving moral turpitude is decided the same way. Under Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), the categorical approach governs, with the realistic probability test; the Attorney General's 2008 framework, which allowed an inquiry beyond the record of conviction, was vacated by the Attorney General in 2015, 26 I&N Dec. 550.
Divisible statutes and the modified categorical approach
Many statutes list more than one way to commit an offense. Some of those lists are alternative elements: separate crimes, written into one section, each with its own set of things the prosecution must prove. Others are alternative means: different ways of satisfying a single element of a single crime. Under Mathis, only the first kind makes a statute divisible.
When a statute is divisible, the judge may use what Descamps calls the modified categorical approach. The judge looks at a limited set of documents from the criminal case, the charging document, the plea colloquy and the judgment among them, for one purpose only: to find out which of the separate crimes you were convicted of. The judge then compares that crime, element by element, to the federal definition. The documents are not read for what happened. They are read for what you pleaded to.
When a statute is indivisible, the record is closed. The judge compares the statute as a whole, and the least serious conduct it reaches decides the case.
The statute, as it read on the date of the offense
The comparison is made against the text of the statute of conviction as it read when the offense was committed. Statutes are amended, subsections are renumbered, and the certified record of conviction may cite the section without the subsection. Before anyone says what a conviction is, the statute and the record have to be in the same room. The record of conviction page lists the documents that count.
Where the facts do come in
The categorical approach has a short list of exceptions, and each one is a place where the record of the criminal case is read for what actually happened. The plea has to be drafted with each of them in mind.
| Question | How it is decided | Authority |
|---|---|---|
| Which substance a drug conviction involved | Categorical, but the substance must be on the federal schedules. A state statute that reaches substances the federal schedules do not list, or a paraphernalia conviction not tied to a federally controlled substance, may not support the charge | Mellouli v. Lynch, 575 U.S. 798 (2015) |
| The loss amount in a fraud or deceit case, INA 101(a)(43)(M)(i) | Circumstance-specific. Decided from the record of the case, and the loss must be tied to the count of conviction | Nijhawan v. Holder, 557 U.S. 29 (2009) |
| The domestic relationship in a crime of domestic violence, INA 237(a)(2)(E)(i) | Circumstance-specific, from reliable evidence. The crime-of-violence element stays categorical | Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016) |
| Violation of a protection order, INA 237(a)(2)(E)(ii) | The categorical approach does not apply. The ground turns on a court's finding that you violated the protective part of the order, and no criminal conviction is required | Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017) |
The loss amount is the one that comes up most. The threshold in (M)(i) is a loss to the victim exceeding $10,000, a statutory loss threshold written into the definition, not a fee, a bond or a penalty. Because it is circumstance-specific, a plea agreement, a stipulation, a restitution order or a sentencing finding that puts the loss above it will be used. The fraud and theft page covers what to do about that.
Who has to prove it
The categorical approach tells the judge how to compare. The burden of proof tells the judge what to do when the comparison cannot be finished, and it changes with the question being asked.
| Question | Who bears the burden | Standard | Authority |
|---|---|---|---|
| Is an admitted person deportable? | DHS | Clear and convincing evidence | INA 240(c)(3)(A); 8 C.F.R. 1240.8(a); Woodby v. INS, 385 U.S. 276 (1966) |
| Is an applicant for admission admissible? | The applicant | Clearly and beyond doubt | INA 240(c)(2); 8 C.F.R. 1240.8(b)-(c) |
| Is the applicant eligible for relief? | The applicant | Must establish eligibility, and must disprove an apparent mandatory-denial ground by a preponderance | 8 C.F.R. 1240.8(d) |
| Does a conviction bar relief when the record is inconclusive? | The applicant, who loses | An applicant who cannot show the conviction is not disqualifying has not met the burden | Pereida v. Wilkinson, 592 U.S. 224 (2021) |
The same record, two different results
Suppose you pleaded to a divisible statute and the record does not say which subsection. On the government's charge of deportability, that record helps you: DHS cannot prove by clear and convincing evidence that you were convicted of the crime that matches the ground. On your application for cancellation of removal, the same record hurts you: under Pereida you have to show the conviction is not disqualifying, and a record that does not say cannot show it. A person who will be charged and will need relief has to plan for both.
What this means for how a plea is drafted
The categorical approach turns a plea into a drafting exercise. Four things follow from it.
The subsection is the plea
If the statute is divisible, the immigration judge will read the charging document, the colloquy and the judgment to find the subsection. A plea to a subsection whose elements fall outside the federal definition is a different plea from one to a subsection whose elements fall inside it, even at the same sentence.
Silence cuts both ways
A record that does not identify the subsection defeats a deportability charge and defeats an application for relief. If you will need relief, the record should say, affirmatively, that you pleaded to the narrower offense. If you will only be defending a charge, silence may be enough. Which one you are is a question for the immigration lawyer, before the plea.
The factual basis is part of the record
For the circumstance-specific elements, what you admit in the colloquy is evidence. A factual basis that names the substance, the amount of loss or the relationship to the victim supplies the government with what the categorical approach would otherwise withhold.
The sentence and the loss are separate from the elements
The one-year thresholds on the aggravated felony list and the loss threshold in (M)(i) are decided from the sentence imposed and the record, not from the statute. A plea to a matching offense with a sentence below the threshold is still outside the entry.
The plea strategy pages turn these into what to ask for. If the plea is already entered, the same method decides whether the conviction actually fits the ground the Notice to Appear says it does, which is where after a plea begins.
Read next: the record of conviction, aggravated felonies, crimes involving moral turpitude, or deportability versus inadmissibility.
Common questions
The police report says I did something worse than what I pleaded to. Will the immigration judge read it?
Not to decide whether the conviction fits a ground of removal. Under Moncrieffe, Descamps and Mathis the judge compares the elements of the statute of conviction to the federal definition and asks what the least serious conduct the statute punishes would be. Only where a statute is divisible, meaning it lists alternative elements that define separate crimes, may the judge look at a limited set of documents such as the charging document, the plea colloquy and the judgment, and only to see which crime you were convicted of. A police report is not one of those documents. The exceptions are the few elements the statute treats as circumstance-specific, such as the loss amount in a fraud case and the domestic relationship in a domestic violence case.
What does it mean for a statute to be divisible?
Under Mathis v. United States, a statute is divisible when it sets out alternative elements that define separate crimes, not alternative means of committing one crime. If the statute is divisible, the judge may consult the record of conviction to see which of the separate crimes you pleaded to and then compare that crime to the federal definition. If it is indivisible, the judge compares the statute as a whole, and if any part of it reaches conduct outside the federal definition the conviction does not match.
Who has to prove what my conviction is?
It depends on the question. If you were admitted and the government charges you as deportable, DHS must prove the ground by clear and convincing evidence under INA 240(c)(3)(A). If you are an applicant for admission, you must show clearly and beyond doubt that you are entitled to be admitted under INA 240(c)(2). If you are applying for relief, the burden is yours under 8 C.F.R. 1240.8(d), and under Pereida v. Wilkinson you lose if the record of conviction is inconclusive.
Is an unclear record good or bad for me?
Both, depending on who has to prove what. A record that does not show which part of a divisible statute you pleaded to can defeat the government's charge of deportability, because DHS cannot meet its burden. The same record can defeat your application for cancellation of removal, because under Pereida the applicant bears the burden and an inconclusive record means the applicant has not carried it. Which of those matters more depends on whether you will need relief, and that is decided before the plea, not after.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.