To determine whether a given conviction constitutes an aggravated felony, within the meaning of INA § 101(a)(43), it is necessary to go through the following analysis:

 

(1)        Examine the record of conviction[1] to identify the statute that defines the offense of conviction on the date of the offense.  This examination is limited to determining the section and subsection number or offense of which the person was convicted.[2]

(2)        Determine whether judicial decisions have added essential elements to those specified by the Legislature.[3]

(3)        If the statute of conviction includes only one offense, with one set of essential elements,[4] determine the minimum conduct necessary to satisfy the essential elements of the offense.

(4)        If the statute of conviction punishes multiple offenses, as delineated by subsections or a disjunctive,[5] determine (if possible) the set of elements of which the person was found guilty or to which the person entered a plea.  Then determine the minimum conduct necessary to satisfy the essential elements of the offense.

(5)        Compare the set of elements necessary to convict to the elements of the relevant aggravated felony category.[6]

(6)        If any instance can be imagined, in which all essential elements necessary to convict under the criminal statute are established, yet the offense does not fall within the aggravated felony definition, then the conviction in question must be held not to be an aggravated felony.[7]

 

The nature of a conviction is determined according to the elements of the offense, rather than the facts of the offense.[8]  The courts may not go behind the record of conviction to ascertain the facts of the case,[9] in order to determine whether the facts in the case, beyond the minimum facts necessary to convict, trigger a ground of removal.

 

All reasonable doubts must be found in favor of the noncitizen.[10]

[1] See § § 4.14-4.32, infra.

[2] See § 4.4, infra.

[3] See § 4.5, infra.

[4] See § 4.13, infra.

[5] See § § 4.9-4.12, infra.

[6] See § 4.7, infra; Chapter 5, infra.

[7] See § 4.7, infra.

[8] See § § 4.17-4.19, infra.

[9] See § 4.16, infra.

[10] See § 4.41, infra.

Ninth Circuit

NATURE OF CONVICTION - TEST FOR DETERMINING
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.").

Other

RESOURCES " PRACTICE ADVISORIES " CATEGORICAL APPROACH
ILRC is pleased to release a new resource on how to identify new defenses using the categorical approach. See How to Use the Categorical Approach Now, available at http://www.ilrc.org/trainings-webinars/recorded-webinars/the-categorical-approach-ninth-circuit.