Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner.

Argument: Taylor's categorical approach applies to all ACCA predicates. A prior conviction that lacks a mens rea element cannot constitute a "serious drug offense." ACCA's legislative history affirms that state drug convictions lacking a mens rea requirement do not qualify as "serious drug offenses." ACCA will continue to have a geographically disparate impact unless the categorical approach is applied. 

Brief for Amici Curiae National Association of Criminal Defense Lawyers and National Association of Federal Defenders in Support of Petitioner.

Argument: Criminal Court records of conviction are often ambiguous, particularly in misdemeanor cases. In many lower criminal courts, misdemeanor convictions are not "on the record." Misdemeanor records often omit key information about the conviction. Even where misdemeanor records once existed, they may have been destroyed or may be otherwise inaccessible. Because criminal records are often ambiguous, the Eighth Circuit's approach leads to inconsistent immigration outcomes. Under the Eighth Circuit’s approach, two noncitizens convicted of the same divisible misdemeanor offense in different counties in the same state could face different immigration outcomes depending on the completeness of the Shepard documents from their criminal cases. When noncitizens are faulted for the paucity of these records, it creates a system in which immigration outcomes are tied to the bureaucratic decisions of county clerks’ offices and the idiosyncrasies of courts’ guilty plea processes. Such a system is wholly inconsistent with the categorical approach, which seeks to guarantee that “all defendants whose convictions establish the same facts … be treated consistently, and thus predictably, under federal law.” Moncrieffe, 569 U.S. at 205 n.11. 

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (On Petition for Writ of Certiorari).

Argument: This case presents a threshold question under the categorical approach: What are the elements of generic burglary? Petitioner’s case involves an entrenched split on whether criminal intent must exist when a trespass begins. The circuit split implicates numerous state burglary statutes. The Sixth Circuit’s approach to generic burglary has widespread and serious practical consequences. Interpretation of the “remaining in” element of generic burglary affects all state burglary ACCA predicates. ACCA mandatory minimums are common and are frequently predicated on state burglary offenses. The Sixth Circuit’s approach greatly expands the scope of conduct that will trigger mandatory minimum sentences under ACCA.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for Writ of Certiorari).

Argument: The Court should grant certiorari to determine whether the rule of lenity applies when a court confronts a federal statutory provision that has both civil and criminal applications and that an agency has interpreted. Section 1101 (a)(43) has extensive criminal applications, with substantial penal consequences. This Court should grant certiorari to reaffirm the important principle that the rule of lenity applies when courts interpret ambiguous statutory provisions like section 1101(a)(43) that carry both civil and criminal applications. This case is a good vehicle for addressing the applicability of the rule of lenity in cases involving "hybrid" civil-criminal statutory provisions. Certiorari is warranted because BIA's and the Sixth Circuit's mistaken understanding of the categorical approach would entail significant practical consequences for attorneys and their clients. The BIA and the Sixth Circuit failed to define the relevant elements of the generic offense of "sexual abuse of a minor," leading to the erroneous result in this case. The misapplication of the categorical approach in this case would create major difficulties for attorneys and their clients. 

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari).

Argument: The circuit court split thwarts the Court's rationales in adopting the categorical approach. The Court should grant review to clarify whether Congress intended the ACCA to target purse snatching and other non-violent robberies. The Court should grant review to resolve inconsistencies in applying the categorical approach. The Court should grant review to clarify the "realistic probability" analysis.

Brief of Amici Curiae Immigrant Defense Project, American Immigration Lawyers Association, National Association of Criminal Defense Lawyers, et al., in Support of Petitioner Upon Grant of Rehearing En Banc.

Argument: Young diverges from the rationale for the Categorical Approach, produces inconsistent immigration outcomes, and undercuts due process considerations. Young frustrates the underlying purpose of the Categorical Approach: to ensure efficiency and predictability in immigration outcomes. Young bars noncitizens from relief even when courts do not regularly maintain the necessary records or when records have been destroyed. Criminal records, especially in cases involving lower-level offenses are often poorly created and maintained. Criminal courts routinely destroy criminal records, creating unfair and inconsistent immigration outcomes. The government is in a far superior position to obtain records than noncitizens, who are often detained, unrepresented, and non-English speaking. Young’s divergence from the Categorical Approach unfairly affects noncitizens in a wide variety of immigration adjudications, both adversarial and non-adversarial.

Corrected En Banc Amici Curiae Brief of the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums In Support of Petitioner-Appellant

Argument: Section 924(c)(3)’s plain language and Supreme Court precedent compel McGuire’s categorical approach. The rule of lenity requires application of the strict categorical approach. The categorical approach provides significant pragmatic benefits.