The statutory elements of the statute of conviction must be examined in order to determine whether the conviction will trigger removal.[29]  If the minimum conduct sufficient to satisfy the elements of the statute of conviction, sometimes as elucidated by case law and the record of conviction, does not fall within that described by the elements of the relevant ground of deportation (so that it is not the case that every conviction under the statute will necessarily fall within the ground of deportation), a finding of removability cannot be sustained based upon the conviction.[30]

 

For example, in Matter of Espinoza,[31] the BIA held a conviction for misprision of a felony was not a crime relating to obstruction of justice.[32]  Misprision of a felony requires evidence “that the principal committed and completed the felony alleged and that the defendant had full knowledge of that fact, failed to notify the authorities, and took an affirmative step to conceal the crime.”  The BIA held that proof of such elements “do not constitute the crime of obstruction of justice as that term is defined in the United States Code,”[33] because “although misprision of a felony bears some resemblance to [the offenses listed in Title 18 of the Code], it lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.”[34]  Consequently, the BIA stated that “[w]e do not believe that every offense that, by its nature, would tend to ‘obstruct justice’ is an offense that should properly be classified as ‘obstruction of justice’. . . . To include all offenses that have a tendency to, or by their nature do, obstruct justice would cast the net too widely.”[35]

 

The elements of the various crimes listed in the aggravated felony definition, to which the elements of the statute of conviction must be compared, are discussed in Chapter 5, infra.         

[29] Matter of LVC, 22 I. & N. Dec. 594 (BIA 1999) (en banc); Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995), cert. denied, 117 S.Ct. 105 (1996); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of Pataki, 15 I. & N. Dec. 324, 325 (BIA 1975) (“The presence or absence of moral turpitude must be determined in the first instance from consideration of the crime as defined by the statute.”).

[30] Matter of Short, supra, at 137.

[31] Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999).

[32] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

[33] Id. at 892 (referring to crimes that “have as an element interference with the proceedings of a tribunal or require an intent to harm or retaliate against others”).

[34] Id. at 894.

[35] Id. at 893-894.

CATEGORICAL ANALYSIS " ELEMENT " DEFINITION
Alleyne v. United States, __ S.Ct. __ (2013) (any fact that increases the mandatory minimum is an "element" that must be submitted to the jury, rather than the judge).

BIA

CATEGORICAL ANLAYSIS - BURDEN OF PROOF - FACT REQUIRED TO BE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE IS NOT SUFFICIENTLY SHOWN BY RECORD OF CONVICTION THAT NEED BE SHOWN ONLY BY A PREPONDERANCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington restitution order, contained in judgment, indicating that the respondent owed no restitution to his "child victim" did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. Specifically, in Washington the facts upon which a restitution award may be based need only have been proven to the judge by a preponderance of the evidence. State v. Dennis, 6 P.3d 1173, 1175 (Wash. Ct. App. 2000). As a result, they do not constitute proof of the defendant's "convicted conduct," which must have been proven beyond a reasonable doubt or admitted as part of a plea.").

Third Circuit

DIVISIBLE STATUTE ANALYSIS - NOT APPLICABLE WHEN NONE OF THE DISCRETE SECTIONS TRIGGERS GROUND OF REMOVAL
Joseph v. United States Atty Gen., 465 F.3d 123 (3d Cir. Oct. 2, 2006) (even where statute may be divided into discreet subsections, court cannot and need not look to the record of conviction to determine subsection of conviction where none of the subsections identified qualifies as an aggravated felony applying minimum conduct analysis). See also Ng. v. Atty Gen., 436 F.3d 392 (3d Cir. 2006) (divisible statute); Canada v. Gonzales, 448 F.3d 560 (2d Cir. 2006) (minimum conduct).

Ninth Circuit

DIVISIBLE STATUTE ANALYSIS - SURPLUSAGE
United States v. Reina-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 15, 2006) (reviewing court is bound to interpret a judicial decision so as to avoid holding some of its language to be surplusage: "To hold otherwise would render Taylor's 'remaining in' language surplusage. Courts avoid '[i]nterpretive constructions which render some words surplusage.' In re Eastport Associates, 935 F.2d 1071, 1080 (9th Cir.1991) (quoting California Mfrs. Ass'n v. Public Utils. Comm'n, 24 Cal.3d 836, 157 Cal.Rptr. 676, 598 P.2d 836, 840 (1979)); see also In re Pacific-Atlantic Trading Co., 64 F.3d 1292, 1302 (9th Cir.1995) ('In construing a statute, a court should interpret subsections written in the disjunctive as setting out separate and distinct alternatives.'"). http://caselaw.lp.findlaw.com/data2/circs/9th/0510475p.pdf