Another occasion in which divisible-statute analysis has been said to apply is where the statute in question punishes one act committed in furtherance of another.  The classic example is burglary.[150]  The basic definition of burglary in many jurisdictions is the entry of a building or structure with intent to commit a crime.  The entry itself can be completely lawful, and the intended crime may or may not trigger a ground of removal. 

 

            The California burglary statute, for example, punishes entry into a building with intent to commit “larceny or any felony.”[151]  Because the statute is written in the disjunctive, it is divisible.  Some target offenses will trigger removal as crimes of moral turpitude, or aggravated felony theft offenses or crimes of violence, while others will not.[152]  Since the statute is divisible, the court is allowed to look to the record of conviction to determine whether the burglary was committed with intent to commit larceny.  If the charge to which a plea was entered is unclear, or specifically states that the burglary was committed with intent to commit “any felony,” the minimum-conduct analysis should apply.

 

            Under a strict divisibility analysis, the courts should not go beyond this question to determine exactly what felony was intended, as that would go beyond the elements of the statute and into the actual facts of the case.  Unfortunately a strict analysis is not always applied in these cases.[153] 

 

            Matter of Esfandiary[154] is an example of a case in which the BIA went beyond the strict divisible statute analysis.  The court looked to a Florida malicious trespass statute punishing trespass with malicious and mischievous intent.  The court concluded (properly or not) that the statute was divisible.  Apparently reading the conjunctive statute in the disjunctive, the court looked to the record of conviction to determine the specific act that the noncitizen intended to commit, and then made its own decision as to whether the specific act was malicious or mischievous:     

 

In the present case malicious trespass requires specific intent. That intent is found by looking to the record of conviction. Bisaillon v. Hogan, 257 F.2d 435 (9 Cir. 1958)  cert. denied, 358 U.S. 872 (1958); Matter of N--, 8 I. & N. Dec. 466 (BIA 1959) . . . . The respondent was charged, in an information dated October 14, 1974, with entering without breaking a dwelling with intent to commit a misdemeanor, to wit: petit larceny. Petit larceny is a crime involving moral turpitude. Quilodran-Brau v. Holland, 132 F.Supp. 765 (E.D. Penn. 1955), aff’d 232 F.2d 183 (3 Cir. 1956).

 

The respondent’s conviction of malicious trespass involves a malicious and mischievous intent. This intent is contained in the information, i.e., the intent to commit petit larceny, a crime involving moral turpitude. We find, therefore, that the respondent’s conviction of malicious trespass is a conviction of a crime involving moral turpitude as that term is used in section 241(a)(4) of the Act.[155]

 

This analysis, while departing from true categorical analysis, is commonly employed by the courts.[156]  See § 4.17, infra.  The court here looked to the fact that the noncitizen intended to commit larceny, and then extrapolated from that to the fact that the trespass was done with malicious, rather than mischievous intent.

[150] Matter of Moore, 13 I. & N. Dec. 711 (BIA 1971) (Michigan conviction of attempted breaking and entering with intent to commit larceny a CMT).  See also Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (assault with intent to commit a felony is a CMT only if the intended felony is also a CMT).

[151] Calif. Penal Code § 459 (emphasis supplied).

[152] See, e.g., Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. Dec. 7, 2005) (Washington conviction of accomplice to residential burglary, in violation of Washington Revised Code § § 9A.52.025(1), 9A.08.020(3) [“A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle” with intent to commit any crime], did not constitute crime involving moral turpitude under categorical approach for removal purposes because it encompasses conduct that does not necessarily involve moral turpitude).

[153] See, e.g., Matter of Beato, 10 I. & N. Dec. 730 (BIA 1964) (second-degree assault with intent to commit a felony involves moral turpitude because the record revealed that the intended felonies were carnal abuse and rape).

[154] Matter of Esfandiary, 16 I. & N. Dec. 659, 661 (BIA 1979).

[155] Ibid.

[156] E.g., Matter of Delagadillo, 15 I. & N. Dec. 395, 396-397 (BIA 1975) (“Since the statute defines both crimes which do and crimes which do not involve moral turpitude, we may look to the record of conviction to determine whether moral turpitude inheres in the crime which was actually committed; Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975); Matter of Grazley, 15 I. & N. Dec. 330 (BIA 1973); Matter of M, 9 I. & N. Dec. 132 (BIA 1960); Matter of T, 2 I. & N. Dec. 22 (BIA 1944; AG 1944).”).

Fifth Circuit

AGGRAVATED FELONY " FIREARMS " FRAUDLENT PURCHASE OF FIREARMS FOR EXPORT
Franco-Casasola v. Holder, __ F.3d __ (5th Cir. Oct. 23, 2014) (federal conviction for violation of 18 U.S.C. 554(a), fraudulent purchase of firearms for export, is a divisible statute, as a target offense where the indictment must specify, and the prosecutor must prove, the underlying offense; record established aggravated felony firearms trafficking offense since the indictment specified a firearms trafficking offense).

DIVISIBLE STATUTE - CONJUNCTIVE CHARGE
United States v. Morales-Martinez, ___ F.3d ___, 2007 WL 2255292 (5th Cir. Aug. 8, 2007) (plea to counting charging noncitizen "did unlawfully, knowingly and intentionally deliver, to-wit: actually transfer, constructively transfer, and offer to sell a controlled substance, to-wit: COCAINE in an amount by aggregate weight, including any adulterants or dilutants of less than 28 grams ...." not sufficient to establish, for illegal re-entry sentencing purposes, that offense was a drug trafficking crime, since the plea may have been to the offense of offering to sell a controlled substance; "[a] disjunctive statute may be pleaded conjunctively and proven disjunctively."), internal citations omitted.

Note: after noting circuit split on this issue, the court resorted to examination of Texas criminal law.

Tenth Circuit

DIVISIBLE STATUTE ANALYSIS - AGGRAVATED FELONY TARGET OFFENSE
Vargas v. Dep't of Homeland Sec., ___ F.3d ___ 2006 WL 1689293 (10th Cir. Jun. 21, 2006) (Colorado conviction of contributing to the delinquency of a minor, in violation of CRS 18-6-701, may be violated by encouraging a child to violated any state law, from jaywalking to murder; since conviction under this statute requires proof, as an element of the offense, of a specified predicate offense, it was proper to look to the charging document to determine the predicate offense; violation of CRS 18-6-701 where the predicate offense was a violation of C.R.S. 18-3-404(1)(A), unlawful sexual contact with a minor, constitutes an aggravated felony). NOTE: Because the statute at issue in this case required proof of a specified predicate offense, this offense is similar to a "target" offense in the CMT context (i.e. burglary, which is only a CMT if the burglary was committed with intent to commit burglary). The unique nature of this statute also allowed examination of the record of conviction despite the fact that the language of the statute itself was not divisible.