Aggravated Felonies

The courts are not authorized to examine the record of conviction where a given statute (or subdivision of a statute) contains only one offense, because then the statute is not divisible.[157]  If it is not possible to determine, applying the categorical analysis, whether the statute or subdivision triggers removal, the court can go no further.[158]   To do so would mean going beyond the elements of the statute into the facts of the case.  The court must instead apply the minimum conduct analysis to determine whether the full range of conduct punished under the statute falls within the ground of removal.[159]

            For example, California Penal Code § 245(a) formerly prohibited assault with a deadly weapon, which was defined to include a range of different weapons, some firearms, some not.  In looking at the essential elements of the crime, as defined by statute, it was not possible to say that the minimum conduct necessary to constitute this offense involves a firearm, since it was perfectly possible to violate it by committing all the elements with a knife or baseball bat.  Under a proper analysis, which considers only the categorical analysis of the elements of the offense, a court cannot consider this a divisible statute, since it defines only one offense, even though the offense may be committed by a number of different means.[160]

The courts have considered the record of conviction, which includes the indictment, plea, verdict and sentence, only where the statute is divisible, for the purpose of determining under which section or clause of the statute the conviction occurred. (See U. S. ex rel. Zaffarano v. Corsi, supra; U. S. ex rel. Valenti v. Karnuth, 1 F.Supp. 370 (N. D. N. Y., 1932); U. S. ex rel. Guarino v. Uhl, supra.)[161]

The categorical analysis does not consider the facts of the case.  Whether a gun or knife was used constitutes one of the facts of the case, rather than an essential element of the offense.  Therefore, a court should not look at the record of conviction under these circumstances to determine the facts of the offense which are not necessary to convict, since they are irrelevant to the categorical analysis.

Some courts incorrectly conclude that a statute without subdivisions, and without any disjunctive elements, is “divisible” merely because the single set of elements required to convict embraces both some acts which do, and other acts which do not, trigger removal.  These cases hold that when such a statute has been violated, it is permissible to look to the record of conviction to determine the specific act committed.[162]  This is improper.  The record of conviction cannot add additional elements to the statute that are not in the offense as defined by the Legislature, and the court is precluded from examining facts of the case not necessary to convict, even if they are included in the record of conviction.[163]  See § 4.17, infra.

            In some cases, a state statute may contain subdivisions or disjunctive language, but still will not be “divisible” for immigration purposes, because (regardless of the subdivisions) each offense described within the statute falls within the ground of removal.[164]

[157] 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.”).

[158] Likewise, where all the possible acts punishable by the statute trigger removal under the ground at issue, there is no need to examine the record of conviction.  See, e.g., United States v. Ladwig, 432 F.3d 1001, 1004 n.7 (9th Cir. Dec. 27, 2005) (“Because the Washington statute is not ‘facially overinclusive,’ that is, because it does not criminalize as, as a felony, conduct that is not a ‘violent felony’ under the [Armed Career Criminal Act], we need not address whether [the offense] is a ‘violent felony’ under the modified categorical approach.”); Sutherland v. Reno, 228 F.3d 171, 177 n.5 (2d Cir. 2000) (rejecting petitioner’s argument that BIA was required to look to record of conviction, since court determined that all offenses under the statute of conviction were crimes of violence); Matter of Martinez-Recinos, 23 I. & N. Dec. 175 (BIA 2001) (although statute contained discrete subsections, all offenses under all subsections were equally grounds for deportation).

[159] See § 4.7, supra.

[160] Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) (if the statute defining the offense of conviction encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain deportability finding on the basis of a conviction for violating that statute, unless the statute is divisible into discrete subsections of offenses that are and those that are not crimes involving moral turpitude, and the record of conviction establishes conviction of a subsection defining a deportable offense).

[161] Matter of R, 2 I. & N. Dec. 819, 826-827 (BIA 1947).

[162] See, e.g., Matter of C, 5 I. & N. Dec. 65 (BIA 1953) (Oregon conviction of contributing to the delinquency of a minor held a CMT under a statute broad enough to include acts which did and acts which did not involve moral turpitude, where record of conviction merely stated that the respondent was convicted of the crime of contributing to the delinquency of a minor, but an examination of the information filed against him clearly showed the commission of certain lewd and lascivious acts which involved moral turpitude).

[163] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc).

[164] See, e.g., Matter of Martinez-Recinos, 23 I. & N. Dec. 175, 117 (BIA Oct. 15, 2001) (“Although we agree with the respondent that the statute contains several parts, we find that each of the offenses enumerated in section 118(a) of the California Penal Code constitutes perjury as defined in 18 U.S.C. § 1621, and, thus, is an aggravated felony.  Because of the parts of the California statute encompass the aggravated felony crime of perjury as defined by the federal statute, we need not look further to the record of conviction.”).