In Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006), the Ninth Circuit outlined the test for determining whether a conviction constitutes a crime of moral turpitude for deportation purposes:



To determine whether a specific crime falls within the category of "crimes involving moral turpitude," we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575 (1990). See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005). Under the categorical approach, we must compare "the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed [by the Arizona statute] is broader than, and so does not categorically fall within, this generic definition." Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir.2003). Under this approach, "[t]he issue is not whether the actual conduct constitutes a crime involving moral turpitude, but rather, whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude." Cuevas-Gaspar, 430 F.3d at 1017.



If the statute of conviction is not a categorical match because it criminalizes both conduct that does and does not involve moral turpitude, we apply a "modified" categorical approach "under which we may look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction, including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings." Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004) (internal quotation marks omitted). We may not, however, "look beyond the record of conviction itself to the particular facts underlying the conviction." Id. If the record of conviction that is introduced at the hearing before the IJ is not sufficient to establish that the offense qualifies as a basis for removal, "the government has not met its burden of proving that the conviction constitutes a predicate offense, and the conviction may not be used as a basis for removal." Id. at 620-21; see also Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.2004) ("If the record of conviction does not establish that the offense the petitioner committed qualifies as an aggravated felony, the government has not met its burden of proving that the defendant committed an aggravated felony.").