104 Iowa L. Rev. 2269 (2019) 

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Abstract

The Immigration and Nationality Act provides a mechanism for automatic removal of aliens convicted of “crimes involving moral turpitude.” The problems resulting from trying to make law based on that phrase led immigration courts to adopt a categorical approach to statutory interpretation, which attempts to guarantee deportation based on statutes that cover actually turpitudinous conduct and not on overinclusive or vague statutory language. The Circuits have split in their methodology when using the categorical approach, with some favoring a “realistic probability” test that requires a showing that the statute of conviction has actually been used to punish the conduct that may trigger deportation, and with others favoring a more formalistic—and less forgiving—“minimum reading” approach. The former allows defendants greater flexibility in front of immigration courts and furthers important procedural goals identified by the Supreme Court’s most recent decisions involving the categorical approach. The latter approach is associated with adverse, and sometimes unfair, results for defendants, who may not have been actually guilty of the conduct proscribed by the statute of conviction, and is also underinclusive in that its narrow and formulaic application can sometimes lead to favorable outcomes for defendants whose conduct was obviously proscribed. This Note advocates for the nationwide adoption of the “realistic probability” standard. To support this argument, this Note will assess the history of the approaches, the methodology and philosophical concerns motivating the use of both tests, and the outcomes defendants can expect from jurisdictions using one test over the other. This Note will argue that the realistic probability test is more in line with Supreme Court precedent, stated goals of procedural fairness, and the principles that motivated the adoption of the categorical approach in the immigration context.