Aggravated Felonies

As will be discussed below, divisible statute analysis applies only where the statute in question:

1.      Can be divided into discrete subsections (e.g., California Penal Code § 136.1(a), (b) and (c)), and/or

2.      Contains more than one offense, separated by the disjunctive “or” (e.g., California Penal Code § 459, which punishes burglary with intent to commit “grand or petit larceny or any felony. . . .”).

These two situations are described, respectively, in § § 4.10 and 4.11, infra.  A special situation in which one offense is committed with intent to commit another (e.g., burglary with intent to commit theft) is discussed in § 4.12, infra.

            To apply a divisible statute analysis, it must also be true that (applying the minimum conduct rule) at least one set of elements necessarily triggers a ground of removal, while another set of elements does not.  See § 4.8, supra.

Otherwise a statute should not be considered divisible, and should be subject to a straight categorical analysis, applying the minimum conduct test.  See § 4.13, infra, § § 4.2-4.7, supra.  This means that the court should not be allowed to look to the record of conviction to determine the nature of the offense.[130]

[130] Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989) (“Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted.”).