Aggravated Felonies

The easiest application of divisible statute analysis occurs where a statute has been divided by the legislature into individual numbered (or lettered) subsections, each defining a single separate crime.[131] 

For example: “Section 265.01 of the New York Penal Law consists of five subdivisions.  The third subdivision involves a firearm, and the first subdivision could, but might not necessarily, involve a firearms conviction.  As such, it is a divisible statute.”[132] 

If the judgment specifies only that the defendant was convicted of violating New York Penal Law § 265.01, but does not specify a particular subdivision, the court may examine the rest of the record of conviction to determine whether the defendant was convicted of New York Penal Law § 265.01(1), (2), (3), (4), or (5).  Since (2), (4), and (5) do not require use of a firearm as an essential element, if the record of conviction does not establish which subdivision the defendant was convicted of violating, then the government cannot clearly show that the conviction was a firearms conviction.  Obviously, if the record specifically identifies (2), (4), or (5) — one of the non-firearms offenses — as the offense of conviction, the conviction cannot be considered a firearms conviction. 

Since conviction of violating subdivision (1) may or may not require use of a firearm, that subsection is subject to the “minimum conduct” analysis, and if the record of conviction revealed that the noncitizen was convicted under that subsection, the government cannot establish deportability.[133]

            Assuming that the government bears the burden of proof, if criminal counsel can keep the record of conviction clear of any evidence that the defendant clearly violated a part of the statute that triggers removability, the charge of removal cannot be sustained.  Defense counsel may have to obtain an amended charge, or tailor the guilty plea so as to admit only a violation of the safe portion of the statute, in order to accomplish this.

[131] See, e.g., Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346 (11th Cir. Dec. 19, 2005) (Florida conviction of grand theft, in violation of Fla. Stat. § 812.014(1), did not constitute aggravated felony theft, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for immigration purposes, because the statute was divisible as subsection (b) required only intent to appropriate use of the property, and the record of conviction did not establish that the defendant was convicted under subsection (a) which would have qualified as an aggravated felony).

[132] Matter of Madrigal-Calvo, 21 I. & N. Dec. 323, 325 (BIA 1996).

[133] See also United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. Aug. 4, 2004) (Pennsylvania conviction for terroristic threats, in violation of 18 Pa. Cons. Stat. § 2706(a)(2003), was not established to be a crime of violence, under U.S.S.G. § 2L1.2, comment (b)(ii)(I), for purposes of enhancing a sentence for illegal re-entry, since the offense is divisible and only the first of the three subsections qualifies as a crime of violence).