Aggravated Felonies

(B)  Surplusage.  As discussed in § § 4.11 and 4.17, supra, language in a charge that goes beyond the exact words of the statute can sometimes be considered in making a divisible statute[229] determination, i.e., when the language serves the purpose of clarifying the portion of the statute of which the defendant was convicted.  A simple example of this would be a charge of “Burglary, to wit, entry with intent to commit theft,” where the burglary statute may be committed with intent to commit “theft or any felony.”

            On the other hand, language included in the charge that does not serve that function should not be considered.  This language should be considered “surplusage.”  For example, where no element of the crime of conviction relates to the use of a weapon, a statement in the charge to which the defendant entered a plea, that the defendant had used a firearm, should be considered surplusage.[230] 

            A more interesting example would be a charge of “Burglary, where the defendant entered into a building with intent to commit bank fraud of over $10,000,” again based upon a statute that punishes burglary with intent to commit “theft or any felony.”  The charge can certainly be used to determine that the conviction was not for “theft.”  However, since the burglary statute only requires that the offense be theft or any felony, the statement that the offense involved fraud does not strictly speak to the “any felony” element beyond the fact that the offense did not involve theft.  Strictly speaking, the mention of “fraud” and any loss to the victim is surplusage.  Applying a divisible statute analysis, the courts should therefore not be allowed to use the charge to find the noncitizen was convicted of an aggravated felony fraud offense.[231]

[229] See § § 4.8-4.13, supra.

[230] Matter of Perez-Contreras, 20 I. & N. Dec. 615, 617 n.4 (BIA 1992) (where no element of the crime of conviction related to the use of a weapon, the statement in the criminal information that the petitioner had used a firearm was “surplusage”).  But see Vue v. INS, 92 F.3d 696 (8th Cir. 1996), discussed at § 4.17, supra.

[231] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (fraud or deceit with a loss to the victim in excess of $10,000).