Understanding the Categorical and Modified Categorical Tests

Understanding the Categorical and Modified Categorical Tests

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This article employs case examples and diagrams to illustrate the mechanics of the categorical and modified categorical tests used to determine the immigration consequences of criminal offenses. It also includes a discussion of, and possible theories for dealing with, Matter of Silva-Trevino, where the attorney general effectively eviscerated the traditional categorical and modified categorical tests as applied to crimes involving moral turpitude (CIMT).


Lee O’Connor helps the reader understand precisely how these tests should work, and offers advice and guidance on how to focus the decision-making on the legal requirements of the tests.


This article discusses:

  • The Three-Step Analysis of the Categorical Test
  • Application of the Modified Categorical Test
  • Analysis of Matter of Silva-Trevino and Its Adverse Effects
  • The Inapplicability of Silva-Trevino Outside the CIMT Context
  • Strategies for Dealing with Silva-Trevino
  • Tips on Forming Arguments Before and After Conviction



October 2010
pdf format
13 pages


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Lee A. O’Connor has been the directing attorney of the Immigrants’ Rights Center at Indiana Legal Services since 1999. Previously, he supervised the immigration units at legal services organizations in San Diego and Los Angeles. He received his J.D. from Loyola Law School in Los Angeles and his B.A. in Political Science from the University of California, Berkeley. Lee is chair of the Indiana American Immigration Lawyers Association (AILA) chapter and previously served as its vice chair and treasurer. He is the 2010 recipient of AILA’s Sam Williamson Mentor Award and a co-recipient, as a member of the AILA Amicus Committee, of the 2010 Jack Wasserman Litigation Award. He has published various articles and has spoken at numerous national and regional conferences on immigration law, including presentations at the AILA Annual Conferences in 2007, 2009, and 2010; and to the National Legal Aid & Defender Association; the Federal Bar Association; the Indiana State Bar Association; the Indiana Public Defender Council; and the Indiana Pro Bono Commission. He was recently selected to be an immigration judge in Los Angeles, California and should take the bench in November or December 2010.

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