(D)  Fraud Offenses.  In Singh v. Ashcroft, [78] the Third Circuit took the rare step of analyzing — in dictum[79] — each aggravated felony case published within that circuit to map out when and how the categorical analysis has been applied or not applied.  While the court noted that a strict categorical analysis had been applied to determine whether a conviction triggered removal as an aggravated felony crime of violence,[80] drug trafficking offense,[81] or forgery offense,[82] the court found that the precedent decisions had not applied a strict categorical analysis to the question of whether a conviction fell under the fraud aggravated felony category.[83]  The court found that while the categorical analysis was applied to determine whether the intent to defraud element was present,[84] the court looked to the facts of the case, as reflected in the record of conviction, to determine whether the loss to the victim was in excess of $10,000.[85]

 

            The court found the fraud aggravated felony loss requirement[86] to be the “prototypical example” of where the aggravated felony definition allows the court to look beyond the elements of conviction, since the loss to the victim requirement “expresses such a specificity of fact that it almost begs an adjudicator to examine the facts at issue.”[87] 

 

            On the other end of the spectrum, the Ninth Circuit held in Li v. Ashcroft,[88] that a noncitizen convicted of several fraud offenses was not convicted of an aggravated felony fraud offense[89] because the jury that convicted him was not required to find that any of the convictions involved a loss to the victim in excess of $10,000.  Even though the charging document, judgment, and the findings of the sentencing judge each indicated such a loss, the court stated:

 

            We are especially reluctant to rely solely on the charging document and the judgment to establish a fact that the government was not required to prove, and the jury was not required to find, to convict Petitioner. Amount of loss is not an element of the underlying crimes of conviction, as we have pointed out, and we have in the record no jury instructions, verdict form, or other comparable document suggesting that the jury actually was called on to decide, for example, that Petitioner’s false claims were for a particular amount. Although it is tempting to presume that the false claims for which the jury convicted Petitioner were those alleged in the superseding information--count 8 described one invoice for $134,199.42 and another for $113,133.53--we do not know for sure that the prosecutor introduced the invoices or that the indictment’s description of the invoices was accurate or that the entire amount of the invoices was fraudulent.[90]

The Ninth Circuit here suggests (implicitly distinguishing this case from some of its earlier precedent) that if the jury had, for some reason, been asked to make a specific finding of loss in excess of $10,000, these offenses would have been found to constitute aggravated felony fraud offenses.  In the context of a plea (as opposed to jury verdict), the court noted that that it would consider such an offense an aggravated felony if (a) the loss to the victim were reflected in the charges, and (b) the defendant specifically pleaded guilty “as charged.”[91]  See § 4.17, infra, for more on this distinction.  The concurrence to Li, on the other hand, asserted that the loss to the victim can never be considered unless the statute of conviction specifically requires a finding of loss in order to convict.[92]

 

            Counsel should argue that the categorical analysis applies across the board to all offenses, including fraud offenses, using the authorities suggested in the concurring opinion in Li.  Failing that, counsel should argue that the loss to the victim language represents one of a very few specific instances in which Congress expressly created a requirement of a deportation ground (or an exception to one) based on a non-element fact which may be sought in the record of conviction.  See § 4.6(F), infra.  In any event, the courts are still precluded from relitigating the underlying facts of the case, or going outside the record of conviction, to determine the nature of the offense of conviction for immigration purposes.  Resort beyond the record may be had only where Congress has made some fact beyond the elements of the offense of conviction into an element of a deportation ground.

[78] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004).

[79] This decision was a sexual abuse of a minor case, not a fraud offense.

[80] Id. at 155-156 (citing Francis v. Reno, 269 F.3d 162 (3d Cir. 2001)).

[81] Id. at 156-158 (citing Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003), Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2001), and Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001)).

[82] Id. at 158-159 (citing Drakes v. Zimski, 240 F.3d 246 (3d Cir. 2001)).

[83] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000).

[84] Singh v. Ashcroft, 383 F.3d at 160 (discussing Valansi v. Ashcroft, 278 F.3d 203, 217 (3d Cir. 2002)).

[85] Id. at 159-161.

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

[87] Id. at 161.

[88] Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19, 2004).

[89] The court noted that INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) has two requirements, that the noncitizen be convicted of an offense involving fraud or deceit, and that the loss to the victim exceed $10,000.  Id. at 896, citing Chang v. INS, 307 F.3d 1185, 1189 (9th Cir. 2002).

[90] Id. at 898.

[91] Ibid., citing United States v. Alvarez, 972 F.2d 1000, 1005 (9th Cir. 1992).

[92] Id. at 899-901 (calling for Alvarez and other precedent to be reversed).

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - EXTRA ELEMENT ANALYSIS - DOMESTIC VIOLENCE CONVICTION GROUND OF DEPORTATION - DOMESTIC RELATIONSHIP - COURT CAN GO BEYOND THE ELEMENTS OF THE OFFENSE OF CONVICTION TO ESTABLISH THE DOMESTIC RELATIONSHIP
United States v. Hayes, ___ U.S. ___, 129 S.Ct. 1079 (Feb. 24, 2009) ("We hold that the domestic relationship, although it must be established beyond a reasonable doubt in a 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.").

BIA

CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) (Chairez II) (Chairez Is interpretation of the divisibility standard used in the modified categorical analysis " adopting the Supreme Courts view in Descamps v. United States, 133 S. Ct. 2276 (2013), will only apply in circuits that have not explained how they understand divisibility after Descamps was decided; therefore, the test for when a statute is divisible will have to be litigated on a circuit-by-circuit basis); clarifying Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Chairez I) (a statute defining a criminal offense is divisible only if (1) it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of elements, more than one combination of which could support a conviction; and (2) at least one, but not all, of those listed offenses or combinations of disjunctive elements is a categorical match to the relevant generic standard; an element is facts that a jury has to find unanimously and beyond a reasonable doubt. And it distinguished alternate means to commit an offense, which do not require jury unanimity). NOTE: The BIA determined that since no deference is owed under Chevron to divisibility analysis, the Immigration Judge must follow the interpretation of Descamps applied within the Tenth Circuit under United States v. Trent, 767 F.3d 1046 (10th Cir. 2014): In Trent, the Tenth Circuit acknowledged that a statute is divisible under Descamps only if it is broken down into alternative elements or potential offense elements, but it concluded that the Descamps Court did not understand the term element to mean only those facts about a crime that must be proved to a jury unanimously and beyond a reasonable doubt. United States v. Trent, 767 F.3d at 105861. Instead, the Trent court concluded that a statute is divisible within the meaning of Descamps whenever it employs alternative statutory phrases. Id. at 106061 (citing Descamps v. United States, 133 S. Ct. at 2285 n.2). Matter of Chairez, 26 I&N Dec. at 482. The National Immigration Project of the National Lawyers Guild and the Immigration Defense Project published a practice advisory linked below that explains the decision detail, and suggests that the BIA is misreading Trent. http://nationalimmigrationproject.org/legalresources/practice_advisories/Chairez-Castrejon%20Advisory.pdf

CATEGORICAL ANALYSIS " STRICT CATEGORICAL ANALYSIS REAFFIRMED AFTER BIAS LANFERMAN DECISION
Campbell v. Holder, 698 F.3d 29, 33-34 (1st Cir. Oct. 19, 2012) (First Circuit acknowledged BIA decision not to follow strict categorical analysis in immigration cases, but held Supreme Court clearly required it anyway, even in sexual abuse of a minor case). The court stated: Although the BIA has said that the Taylor"Shepard approach need not be applied with the same rigor in the immigration context as in the criminal arena,In re Lanferman, 25 I. & N. Dec. 721, 727"28 (B.I.A. 2012), the Supreme Court's decision in Nijhawan v. Holder, 557 U.S. 29 (2009), requires the Taylor"Shepard analysis in INA cases"save where the matching INA offense is phrased so as to require a fact-specific determination rather than identification of a generic crime. [FN3] Further, certain offenses listed in INA 101(a)(43) must refer to generic crimes and one such offense is sexual abuse of a minor. Nijhawan, 557 U.S. at 37; accord Sanchez"Avalos v. Holder, No. 07"74437, """ F.3d """", 2012 U.S.App. LEXIS 18570, at *6 n. 1, 2012 WL 3799665, at *2 n. 1 (9th Cir. Sept. 4, 2012). FN3.Nijhawan reasoned that some subparagraphs of the aggravated felony definition in INA 101(a)(43) invite inquiry into the specific circumstances surrounding an offender's commission of a [certain crime] on a specific occasion, 557 U.S. at 40, e.g., a provision covering offenses that involve[ ] fraud or deceit in which the loss to the ... victims exceeds $10,000, INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) (emphasis added). But where the INA's aggravated felony listing refers to a generic crime"e.g., murder"the Taylor"Shepard inquiry is required. Nijhawan, 557 U.S. at 34, 37; accord Carachuri"Rosendo v. Holder, 130 S.Ct. 2577, 2586 n. 11 (2010). More recently the Supreme Court again stressed that (fact-specific provisions aside), the categorical approach operates similarly in the INA context as in the criminal context. In Kawashima v. Holder, 132 S.Ct. 1166 (2012), the Court said: To determine whether the Kawashimas' offenses involv[e] fraud or deceit within the meaning of [the INA aggravated felony statute], we employ a categorical approach by looking to the statute defining the crime of conviction, rather than to the specific facts underlying the crime. Id. at 1172. (Id. at 33-34.)

CONVICTION"NATURE OF CONVICTION"CATEGORICAL ANALYSIS"DIVISIBLE STATUTES"BROAD OR NARROW INTEPRETATION
Matter of Lanferman, 25 I. & N. Dec. 721 (BIA Mar. 9, 2012) (a criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief: [W]e have traditionally applied divisibility analysis to all manner of statutes, regardless of their structure. . Adopting the broadest approach[] is also consistent with the view we share with some courts of appeals that the categorical approach itself need not be applied with the same rigor in the immigration context as in the criminal arena, where it was developed.). Note: This decision essentially adopts the reasoning of United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc), nation-wide. In addition, it suggests that the categorical analysis in the immigration context is different from the categorical analysis in the criminal context, and thus the BIA gets Brand-X deference. These two aspects of the decision should be challenged wherever possible, as they fly in the face of many years of consistent application of the strict categorical analysis. For example, the BIA had previously held: We note that the statute under which the respondent was convicted is divisible, meaning it encompasses offenses that include as an element the use, attempted use, or threatened use of physical force against the person or property of another, as well as offenses that do not. Where a statute under which an alien was convicted is divisible, we look to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense of which the alien was convicted will sustain a ground of deportability under section 241(a) (2) (A) (iii) of the Act. This approach does not involve an inquiry into facts previously presented and tried. Instead the focus is on the elements required to sustain the conviction. (Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999). And, in another case: In accordance with this longstanding body of circuit precedent, we have from our earliest days espoused the same principle, resulting in an analytical approach that is essentially identical to the `categorical approach' adopted by the Supreme Court in both the sentencing and immigration contexts. (Matter of Velazquez Herrera, 24 I. & N. Dec. 503 (BIA May 20, 2008). The BIA in Lanferman did not explain or justify its changes in analysis from the categorical analysis consistently applied before. Thanks to Jonathan Moore.

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " CIRCUMSTANCE SPECIFIC FACTOR " DRUG TRAFFICKING " SMALL AMOUNT OF MARIJUANA
Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) (remanding case to IJ to allow respondent to present factual evidence that Virginia conviction of possession with the intent to give or distribute less than one-half ounce of marijuana, in violation of Va. Rev. Stat. 18.2-248.1(a)(1), involved only gratuitous distribution of a small amount of marijuana); following Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a misdemeanor); citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003). NOTE: The BIA relied upon Nijhawan v. Holder, 557 U.S. 29 (2009), to find the circumstance-specific approach is appropriate to determine whether a conviction of possession of marijuana with intent to distribute involved a small amount of marijuana and no remuneration. The BIA stated that the less than 30 grams of marijuana exception, may, in general, serve as a useful guidepost in determining whether an amount is small. Matter of Castro Rodriguez, 25 I&N Dec. at 703.

CATEGORICAL ANALYSIS - SILVA-TREVINO IMPOSES TRADITIONAL STEP ONE CATEGORICAL ANALYSIS WITH REASONABLE PROBABILITY ADDITION
Matter of Louissaint, 24 I. & N. Dec. 754 (BIA Mar. 18, 2009) (BIA interpreted Silva-Trevino to use the traditional categorical analysis in Step One, with the additional requirement that respondent show a reasonable probability that the statute would actually be used in a case falling outside the boundaries of the crime of moral turpitude definition, by showing at least one actual, rather than hypothetical, case in which this occurred).

RECORD OF CONVICTION - BIA FINDS COURTS MAY GO BEYOND RECORD OF CONVICTION WHEN LOOKING TO "EXTRA ELEMENTS"
Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007) (federal conviction of conspiracy to entice interstate travel to engage in prostitution, in violation of 18 U.S.C. 2422(a), constituted aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C. 1101(a)(43)(K)(ii) (2000), where offense was committed for "commercial advantage" since it was evident from the record of proceeding, including the respondents testimony, that he knew that his employment activity was designed to create a profit for the prostitution business for which he worked, based on records outside the record of conviction and even though "commercial advantage" is not an element of the offense and the evidence relating to that issue is not ordinarily likely to be found in the record of conviction). http://www.usdoj.gov/eoir/vll/intdec/vol24/3556.pdf

NOTE: Although the BIA limited its holding to the prostitution aggravated felony category this decision is very dangerous. An "extra element" analysis has been accepted by some circuits to allow the courts, when required, to look at information in the record of conviction beyond that required by the statute to convict, see, e.g., Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (sexual abuse of a minor category of aggravated felony does not require "extra element" anlaysis, and therefore, Delaware conviction of unlawful sexual contact in the third degree under Del. C. 767, penalizing "sexual contact with another person [with knowledge]," does not constitute sexual abuse of a minor because the elements of that statute do not require that the offense be committed against a minor.). However, the BIA decision here goes much further to hold that "where Congress has defined an aggravated felony to include a component (e.g., "commercial advantage") that is neither an element of the underlying offense nor a basis for a sentence enhancement, and thus would not normally be alleged in a criminal charging instrument, it would defeat the statute to require the application of the categorical (or modified categorical) approach, in which only the statute itself and the limited materials constituting the record of conviction may be consulted." Matter of Gertsenshteyn, 24 I. & N. Dec. at 114.

Thus, apparently any information may be submitted to the IJ to determine whether the "extra element" has been met, including unincorporated police reports, admissions of the respondent before the IJ, testimony of disgruntled ex-spouses, etc. The BIA equated this record-of-conviction-free analysis to the determination of whether an offense is a "particularly serious crime" for asylum and withholding purposes, and found that, "[a]lthough some burden to the system may result from the inapplicability of the categorical approach in this instance, we believe such burden to be minor." Id. at 116. This case appears to be an attempt to adopt (and expand) the First Circuits decision in Conteh v. Gonzales, __ F.3d __ (1st Cir. Aug. 22, 2006) (defining "modified categorical" analysis to be an examination of the record of conviction beyond the second step of the Taylor/Shepard categorical analysis; rather than being limited to looking to the record of conviction to determine the elements of the crime to which the noncitizen admitted or was found guilty of committing, immigration authorities may look to any facts in the record of conviction to determine nature of the conviction, including those facts to which the noncitizen did not admit or was not found guilty). Compare Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004) (describing "modified categorical" as synonymous with second step of Taylor/Shepard categorical analysis); Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (same); Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (extending beyond Taylor/Shepard statutory elements analysis only when the ground of removal at issues requires "extra element" analysis, but remaining with the confines of the record of conviction).

This decision could have very dangerous implications for other grounds of removal, particularly aggravated felony fraud, sexual abuse of a minor, and the domestic violence ground of removal.

DIVISIBLE STATUTE - EXTRA ELEMENT
Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007) (categorical approach to determining whether a criminal offense satisfies a particular ground of removal does not apply to the inquiry whether a violation of 18 U.S.C. 2422(a), interstate travel to engage in prostitution, was committed for "commercial advantage" and thus qualifies as an aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C. 1101(a)(43)(K)(ii) (2000), where "commercial advantage" is not an element of the offense and the evidence relating to that issue is not ordinarily likely to be found in the record of conviction). http://www.usdoj.gov/eoir/vll/intdec/vol24/3556.pdf

DIVISIBLE STATUTE ANALYSIS - EXTRA ELEMENT
Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA Sept. 28, 2007) (IJ erred in failing to examine presentence report to determine whether noncitizen had been convicted of an aggravated felony fraud offense, with a loss of $10,000 or more; the loss to the victim requirement under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), is an "extra element" that may be determined (1) without application of the categorical or divisible statute analysis; and (2) by looking beyond the record of conviction to "any evidence admissible in removal proceedings bearing on the loss to the victim," including testimony in immigration court).

NOTE: This is an insupportable decision, building upon the BIAs analysis in Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007). It is extremely likely to be overturned or limited (if appealed), as the case arose in the Third Circuit, which, while allowing proof of a portion of a ground of deportation beyond the elements of the offense of conviction, requires that the extra element be found by examination of the record of conviction, and not beyond. See Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004); Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (cannot look to dismissed counts; limiting examination to the indictment, plea, verdict, sentence, and any explicit factual findings by the trial judge."), citing Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254 (2005). The BIA decision in fact cites the Third Circuit as already having made a holding contrary to the BIAs holding. Matter of Babaisakov, 24 I&N Dec. at 316.

Thus the BIA is blatantly ignoring the rule that the court must follow the law of the circuit in which the case arose. Matter of Anselmo, 20 I. & N. Dec. 25 (BIA 1989). While on the one hand suggesting that it is following Alaka (see, e.g., Babaisakov, n.8), the decision concludes with the following: "We leave for another day any questions that may arise with respect to circuit law that may be in tension with this decision, as we ordinarily follow circuit law in cases arising within a particular circuit and the grounds for any departure would need to be developed in the context of specific cases." Matter of Babaisakov, supra, 24 I. & N. Dec. at 322 (emphasis supplied). Apparently the BIA no longer feels it needs follow the law of the circuit courts.

The only basis on which this case might not be overruled is the fact that the criminal trial judge "affirmatively adopted" the PSR without change, thus arguably making the PSR an explicit factual finding by the trial judge, and so any discussion of abandoning the categorical analysis or allowing examination of any admissible evidence could be read as dictum. Only the First Circuit has suggested an analysis similar to that presented in this case. See Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006).

First Circuit

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MINIMUM CONDUCT " BURDEN
Sauceda v. Lynch, ___ F.3d ___ (1st Cir. Apr. 22, 2016) (a non-citizen can qualify for cancellation of removal without having to prove affirmatively that a conviction wasn't for a disqualifying conviction: "We hold that since all the Shepard documents have been produced and the modified categorical approach using such documents cannot identify the prong of the divisible Maine statute under which Peralta Sauceda was convicted, the unrebutted Moncrieffe presumption applies, and, as a matter of law, Peralta Sauceda was not convicted of a "crime of domestic violence."). NOTE: This case addresses the issue of who wins a divisible statute argument when the record of conviction is unclear which part of the statute the noncitizen was convicted under. The Ninth Circuit went back and forth on this issue for several years. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007); Young v. Holder, 697 F.3d 976, 988"90 (9th Cir.2012) (en banc). Ultimately, however, the Ninth Circuit left this question open following Moncrieffe. See Almanza Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016). This appears to be the first Circuit Court decision to definitively apply Moncrieffe to find that the categorical (and modified categorical) analysis is a question of law, and does not depend upon whether the Government or the Respondent bears the burden of proof.

CATEGORICAL ANALYSIS - FIRST CIRCUIT RULE
Magasouba v. Mukasey, 543 F.3d 13, 14 (1st Cir. Sept. 30, 2008) ("Whether petitioner's state-court conviction actually constitutes an aggravated felony, as defined in 8 U.S.C. 1101(a)(43), is a question of law over which this court has jurisdiction. See, e.g., Aguiar v. Gonzales, 438 F.3d 86, 88 (1st Cir.2006), cert. denied, __ U.S. __, 127 S.Ct. 1251, 167 L.Ed.2d 87 (2007). In conducting this inquiry, we employ a modified categorical approach, which focuses on the elements of the state conviction. Conteh v. Gonzales, 461 F.3d 45, 55 (1st Cir.2006), cert. denied, __ U.S. __, 127 S.Ct. 3003, 168 L.Ed.2d 732 (2007). When the statute of conviction necessarily involves all the elements of a 1101(a)(43) offense, proof of the fact of conviction suffices to discharge the government's burden. Id. at 56. But when the state provision is broader in scope, the government ... must demonstrate, by reference only to facts that can be mined from the record of conviction, that the putative predicate offense constitutes a crime designated as an aggravated felony. Id.")

CATEGORICAL ANALYSIS - "MODIFIED CATEGORICAL" ANALYSIS
Conteh v. Gonzales, __ F.3d __ (1st Cir. Aug. 22, 2006) (defining "modified categorical" analysis to be an examination of the record of conviction beyond the second step of the Taylor/Shepard categorical analysis; rather than being limited to looking to the record of conviction to determine the elements of the crime to which the noncitizen admitted or was found guilty of committing, immigration authorities may look to any facts in the record of conviction to determine nature of the conviction, including those facts to which the noncitizen did not admit or was not found guilty). Compare Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004) (describing "modified categorical" as synonymous with second step of Taylor/Shepard categorical analysis); Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (same); Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (extending beyond Taylor/Shepard analysis only when the ground of removal at issues requires "extra element" analysis).

Second Circuit

CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
Flores v. Holder, ___ F.3d ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (rejecting government argument that the agency is not bound to follow Descamps on the basis that the case arose in the sentencing context; the BIA is bound to apply divisibility consistently with the individual circuits' interpretation of divisibility under Descamps.); following In re Chairez"Castrejon, 26 I. & N. Dec. 349, 354 (BIA 2014); accord, Kaufmann v. Holder, 759 F.3d 6, 8"9 (1st Cir.2014); Aguilar"Turcios v. Holder, 740 F.3d 1294, 1301"02 (9th Cir.2014); Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1280 n. 3 (11th Cir.2013); Rojas v. Attorney Gen. of U.S., 728 F.3d 203, 216 n. 12 (3d Cir.2013) (en banc).

CATEGORICAL ANALYSIS - EXTRA ELEMENT
Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) (federal conviction of violating and conspiring to violate 18 U.S.C. 2422(a), enticing individuals to travel in interstate or foreign commerce to engage in prostitution, did not constitute an aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C. 1101(a)(43)(K)(ii) ("an offense that ... is described in section 2421, 2422 or 2423 of Title 18 ... if committed for commercial advantage"); BIA departed, with insufficient reason, from Second Circuit analysis long used to decide whether a noncitizen has been convicted of an aggravated felony; and it was unclear what result the BIA would reach under the proper framework).

Third Circuit

CATEGORICAL ANALYSIS - BURDEN OF PROOF - EXTRA ELEMENT
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) (rejecting argument that loss must be established beyond a reasonable doubt by criminal court: "we should not raise an aspect of an immigration statute to the level of an element of a criminal offense, as the dissent urges, merely because requiring that it be a part of the conviction eases a courts decision-making process.")

AGGRAVATED FELONY - FRAUD OFFENSES - EXTRA ELEMENT
Alaka v. Attorney General, ___ F.3d ___, 2006 WL 1994500 (3d Cir. Jul. 18, 2006) (statute defining fraud offense aggravated felony, INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), by referring to the amount of the loss to the victim, invites inquiry beyond the elements of the offense to determine the amount of loss).

Fourth Circuit

RELIEF " CONVICTION BAR " CATEGORICAL APPROACH
Salem v. Holder, ___ F.3d ___, ___, 2011 WL 1998330 (4th Cir. May 24, 2011) (suggesting, but not deciding, that the issue of whether a conviction is an aggravated felony for purposes of cancellation of removal may be subject to categorical analysis: we are reluctant to extend application of the categorical approach to the immigration relief context given the uniqueness of the INA's burden-shifting regime.)

Seventh Circuit

DIVISIBLE STATUTE ANALYSIS - DIVISIBLE STATUTE - STATUTE CONSIDERED DIVISIBLE, WITH RESPECT TO AGE OF VICTIM, EVEN THOUGH STATUTE DID NOT REFER IN ANY WAY TO AGE OF VICTIM
Sharashidze v. Gonzales, ___ F.3d ___, 2007 WL 777666 (7th Cir. March 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 ["offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification]," constituted a divisible statute with respect to the age of the victim for purposes of considering whether conviction constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because the offense in fact involved a minor, thus rendering Sharashidze deportable under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)).

Eighth Circuit

CATEGORICAL ANALYSIS - SILVA-TREVINO REJECTED
Guardado-Garcia v. Holder, 615 F.3d 900 (8th Cir. Aug. 4, 2010) ("We are bound by our circuit's precedent, and to the extent Silva-Trevino is inconsistent, we adhere to circuit law. See Jean-Louis v. Att'y Gen., 582 F.3d 462, 470-73 (3d Cir.2009) (concluding that "deference is not owed to Silva-Trevino's novel approach").").

Ninth Circuit

CONVICTION -- NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS " PLEA TO LESSER INCLUDED OFFENSE IDENTIFIED BY COUNT INCORPORATES MATTERS ALLEGED IN THE GREATER OFFENSE CHARGED IN THAT COUNT
Ruiz-Vidal v. Lynch, 803 F.3d 1049 (9th Cir. Oct. 9, 2015) (immigration court could look to originally charged count to identify controlled substance where noncitizen pleaded guilty to a lesser included offense; Ruiz"Vidal's plea"which references a specific count in the Information"and the Information, which references a specific controlled substance, provide clear and convincing evidence that Ruiz"Vidal was convicted of a removable offense.). NOTE: This case does not necessarily apply to all pleas to lesser included offenses. In making this holding, based on the concept of lesser included offense, the Court notes: [b]ecause possession of each different drug under California Health and Safety Code 11377(a) constitutes an entirely separate offense, Coronado, 759 F.3d at 985, the indictment charged him with the specific offense of sale of methamphetamine, not sale of a controlled substance. A conviction for possession of any other drug couldn't be a lesser included offense to sale of methamphetamine. The only way a conviction for possession of a controlled substance can be a lesser included offense to the crime of sale of methamphetamine is if the drug the defendant is convicted of possessing is methamphetamine. Hence, so long as there is clear and convincing evidence that Ruiz"Vidal's crime of conviction was a lesser included offense to Count 1, we can conclude he was convicted of possessing methamphetamine. The court distinguishes Cisneros"Perez v. Gonzales, 465 F.3d 386 (9th Cir.2006) (as amended), on the basis that the judgment record didn't establish that Cisneros"Perez necessarily pleaded no contest to the allegations in the original complaint because [i]t is not stated in any of the cognizable documents that the conviction for violating [the lesser included offense] stems from the same incident as the charges in the criminal complaint. Id. at 393 (emphasis added). Judge Reinhardt wrote a strong dissent.

PRACTICE ADVISORY " CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " RECORD OF CONVICTION " LESSER INCLUDED OFFENSES " CALIFORNIA
The Ninth Circuit held that because a lesser included charge must be one that is necessarily included in the charged offense, the lesser-included possession offense must have been possession of the same substance charged in the dismissed count charging the greater offense. In dissent, Judge Reinhardt argued the Ninth should stay out of messy questions about what is and is not a lesser-included offense: The complexity and uncertainty of that task is well illustrated here. Although Petitioner pled no contest to the lesser included offense to sale of a controlled substance, the offense to which he pled no contest " possession of a controlled substance " is not a lesser included offense to the crime charged " sale of a controlled substance " under at least one of the tests used by California courts. Under Californias elements test, possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell . . . because the former crime contains elements a sales offense does not: knowing possession of a usable quantity. People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316 (Cal. Ct. App. 1994); see also Judicial Council of California Criminal Jury Instructions, 1 CALCRIM No. 2300 (2015). Moreover, under that test the particular drug alleged in the information is not relevant to determining a lesser included offense. See People v. Sosa, 148 Cal. Rptr. 3d 826, 828"29 (Cal. Ct. App. 2012). Under the accusatory pleading test, the specific language of the accusatory pleading must include all of the elements of the lesser offense. People v. Moses, 50 Cal. Rptr. 2d 665, 668 (Cal. Ct. App. 1996). In this case, the first count in the accusatory pleading " the count to which Petitioner pled no contest to the lesser included offense " does not include any specific language concerning possession of methamphetamine; it merely repeats the language in the sale statute. There is an excess clause as to count one including the allegation that Petitioner possessed for sale/sold . . . methamphetamine, but that allegation could be satisfied by Petitioner selling methamphetamine without possessing it for sale. In short, rather than clear, unequivocal, and convincing evidence that Petitioner pled no contest to possession of methamphetamine, the record in this case reveals ambiguity and confusion regarding the meaning of Petitioners plea to a lesser included offense. Ruiz-Vidal v. Holder, ___ F.3d ___, ___ (9th Cir. 2015) (Reinhardt, J. dissenting). A petition for rehearing is in preparation.

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " LIMITATIONS
Aguilar-Turcios v. Holder, 691F.3d 1025 (9th Cir. Aug. 15, 2012) (military conviction of violating UCMJ Article 92, which prohibits violat[ing] or fail[ing] to obey any lawful general order or regulation, see 10 U.S.C. 892(1), did not amount to a violation of 18 U.S.C. 2252(a)(2) and (a)(4), under the modified categorical approach, because the facts on which the conviction necessarily rested do not satisfy the elements of either 18 U.S.C. 2252(a)(2) or (a)(4), and therefore do not constitute deportable child pornography aggravated felony convictions under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I)).

CATEGORICAL ANALYSIS " SCOTUS REVIEW OF AGUILA-MONTES DE OCA
United States v. Descamps, 466 Fed. Appx. 563 (9th Cir. 2012) (Supreme Court grant of certiorari is limited to the question whether, in a case under the Armed Career Criminal Act, when a state crime does not require an element of the federal crime of burglary, the federal court may find the existence of that element by examining the record of the state proceedings under the "modified categorical approach.). The issue presented is "Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir.2011) (en banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit courts of Appeal would not allow it."

NATURE OF CONVICTION - EXTRA-ELEMENT ANALYSIS
Kawashima v. Holder, 593 F.3d 979 (9th Cir. Jan. 27, 2010) (Nijhawan added a "third step" to the categorical analysis - determining whether the ground of removal depends only upon the "elements" of the crime, or any additional "circumstance specific" factors; if the requirement is "circumstance specific," the reviewing court must determine whether the BIA used "fundamentally fair procedures" in examining those factors to establish removability; examination of a plea agreement that contains a stipulated loss amount is "fundamentally fair.").

AGGRAVATED FELONY - ALIEN SMUGGLING
United States v. Guzman-Mata, 579 F.3d 1065 (9th Cir. Aug. 27, 2009) (federal conviction for violation of 8 U.S.C. 1324(a)(1)(A) is categorically an "alien smuggling" offense; noncitizen bears burden of showing that "family" exception applies; shift of burden is not impermissible).

NOTE: This case relies upon the reasoning of Nijhawan v. Holder, 557 U.S. __, 129 S.Ct. 2294 (2009).

Other

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " APPLICATION OF DESCAMPS
Matter of Chairez and Sama, 26 I. & N. Dec. 686 (A.G. 2015) (referred to Atty Gen. for review of issues relating to the application of Descamps v. United States, 133 S. Ct. 2276 (2013); ordering cases stayed and not regarded as precedential during pendency of review).

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS MAY BE USED MORE OFTEN IN THE NINTH CIRCUIT
Some situations where Aguila-Montes may change prior law include: (1) Estrada-Espinoza consensual sex rules. California Penal Code 261.5(c) shouldn't change because there is only a 3-year age difference, but the result may change for other cases where the record of conviction shows a 4-year age difference between the victim who is under 16 and the perpetrator and there is knowing conduct. (2) Any sexual abuse offense which is age-neutral. Where the record of conviction shows that the victim is a minor would be an aggravated felony (e.g., California Penal Code 243.4(a) sexual battery) (3) Any age-neutral statute involving intentional abusive conduct or negligent abusive conduct used to avoid a crime of child abuse, where the record of conviction shows that the victim is a minor would be a deportable crime of child abuse. (4) Any firearm-neutral statute where a gun is involved would be a deportable firearms offense if, and but only if, it showed a violation of any law related to the elements of the firearm deportation ground. (5) Any crime of violence statute without a domestic element where a domestic element is shown is a deportable crime of domestic violence. (6) Any assaultive crime involving actual violent force where the record of conviction shows a domestic relation may now be considered crime of moral turpitude.

CATEGORICAL ANALYSIS - CRIME OF MORAL TURPITUDE
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (Moral turpitude is an "extra-element" allowing the courts to examine the underlying facts of the conviction in order to made a moral turpitude determination).

In short, the Attorney General has abandoned the categorical analysis in favor of a fact-based examination, rejecting Taylor, Shepard, and all prior categorical analysis case law in the CMT context. There is no longer any limit to the statute of conviction or minimum conduct. The IJ can look directly to the underlying facts whenever s/he feels it necessary to do so.

The categorical analysis survives only as an "evidentiary hierarchy," to ease the administrative burden of the immigration courts and the DHS. The new rule can be phrased as, "if at first its not a CMT, try, try again."

Step 1 (from Duenas-Alvarez, 549 U.S. 183 (2007)): Look at the statute, if the statute is categorically a CMT the conviction is a CMT. The Attorney General applies Duenas language regarding "reasonable probability of prosecution," as a requirement that the noncitizen prove that the statute of conviction is not categorically a CMT by pointing to the facts of his own case or a prior published decision. If there isnt a case out that punishes a non-CMT under the statute, then the conviction is categorically a CMT.

Step 2 (from Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006)): "Modified categorical approach" no longer means looking to determine the elements of conviction in case of a divisible statute. The term now means looking to any facts in the record of conviction to determine whether the offense was in fact a CMT.

Step 3 (from Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008)): The Attorney General sees no justification for being limited to the record of conviction. If it cannot be determined that the conviction was a CMT by looking to the facts in the record of conviction, the immigration authorities can look at any and all underlying facts and subsequent testimony if the immigration judge decides it is necessary to do so.

While the noncitizen cannot dispute any facts found by the judge/jury or elements necessary for conviction, the DHS not limited by the elements of conviction in any way.

The minimum conduct punishable under the Texas Statute at issue in Silva-Trevino included where a 20 year old consensually feeling the breast of a girl 1-day shy of 18 years old, though clothing, while (mistakenly) believing she was over 18 years old. The conviction record reflected only the basic language of the statute. Nevertheless, the Attorney General remanded the case back to the BIA to determine whether the actor, in fact, knew or had reason to believe that the victim was under the age of 18.

The Attorney General was explicit in stating his view that Brand-X allows this decision to overrule all prior inconsistent case law from the Circuit Courts.

See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments in opposition to this terrible decision. This decision abruptly changes nearly 100 years of CMT law, and should be attacked.

CATEGORICAL ANALYSIS YOUNG AND OCA " REVISED PRACTICE ADVISORY
http://www.ilrc.org/files/documents/ilrc-cat_approach_9th_cir_9.12_update.pdf