Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) ("The Courts of Appeals have transplanted that categorical approach into the INA because of obvious similarities between the two inquiries. The plain language of the INA, like 924(e), mandates that the alien was "convicted" of the prior offense designated in the INA as an "aggravated felony." It is not sufficient for the BIA to
independently conclude that the alien "has committed" that prior offense. Therefore, the INA, like 924(e), requires a comparison of the prior conviction to the generic definition of the pertinent aggravated felony - in this case,
1101(a)(43)(M)(i) and (U). The rationale is not just a textual one, however. Courts have adopted categorical approaches for the INA also because the INA inquiry involves the same sorts of practical difficulties and fairness concerns underlying the Supreme Courts decisions in Taylor and Shepard. As the Second Circuit explained, "the BIA and reviewing courts are ill-suited to readjudicate the basis of prior criminal convictions." Dulal-Whiteway, 501 F.3d at 132. See also id. ("we decline the invitation to piece together an underlying attempt conviction by weighing evidence and drawing conclusions in a manner appropriate only for a criminal jury") (quoting Sui v. I.N.S., 250 F.3d 105, 119 (2nd Cir. 2001)); Shepard, 544 U.S. at 23 (a purpose of the categorical approach is the "avoidance of collateral trials"). As the Second Circuit also recognized, the categorical approach promotes basic precepts of fairness. Id. at 133 ("[I]f the guilty plea to a lesser, [non-removable] offense was the result of a plea bargain, it would seem unfair to [order removal] as if the defendant had pleaded guilty to [a removable offense]. [Taylor, 495 U.S.] at 601-02. By permitting the BIA to remove only those aliens who have actually or necessarily pleaded to the elements of a
removable offense, our holding promotes the fair exercise of the removal power").")(Stapleton, J, dissenting).