(A) Divisibility Analysis — When It Applies.  A statute is “divisible” when it contains several different offenses, i.e., different sets of elements under any one of which a conviction may be sustained.[25]  If a conviction under one set of elements would, in all cases, fall within a ground of removal, but a conviction under a separate set of elements would not, the court is allowed to look to the “record of conviction” to determine which set of elements formed the basis of the defendant’s conviction.[26] 

 

If the minimum conduct necessary to sustain a conviction under the set of elements of which the noncitizen was convicted would not necessarily trigger deportability, a conviction under that set of elements will not be sufficient to meet the government’s burden in proving the conviction falls within a conviction-based ground of deportability.  The court should not be allowed to look to the record of conviction in such a case, since the offense to which the noncitizen pleaded or was found guilty has already been established.

 

This divisibility analysis has consistently been applied across the board to all categories of removable criminal convictions.[27]  Decisions applying divisibility analysis therefore apply interchangeably, regardless whether the case involved crimes of moral turpitude, aggravated felonies, firearms offenses, drug offenses, or any other category of removable offense.

 

Arguably, in some circuits, a second level of analysis is required for certain grounds of removal, i.e., where the ground of removal itself requires proof of additional information not specifically tied to the elements of the conviction,[28] such as loss to the victim.[29]  However, this second level of analysis should also be confined to the information contained in the record of conviction.[30]  The record of conviction may also be consulted where a question of sentencing may affect deportability or inadmissibility on account of a conviction.  Examples of this would include sentence imposed, as where a noncitizen is charged with having committed an aggravated felony crime of violence, with a sentence imposed of at least one year,[31] and other grounds of deportation that depend on maximum possible sentence.[32]  The question of sentence, however, is distinct from the question of the nature of the offense of conviction.  Therefore, decisions allowing resort to the record of conviction for sentence do not undermine the rule that the record of conviction may be consulted, to determine the nature of the offense, only where the statute of conviction is divisible and it is not otherwise possible to determine which offense within a divisible statute is the offense of conviction.

 

Unfortunately, some courts are less than clear in either their descriptions, or their applications of divisible-statute analysis.  Each circuit may have its own method and terminology when it comes to dividing a statute.  The Ninth Circuit, for example, distinguishes between the “categorical approach” and the “modified categorical approach” to describe the analysis.[33]  The Seventh Circuit, on the other hand, distinguishes between a “charge-offense,” which is dependent upon the elements of the crime and can only be determined by looking to the statute, and a “real-offense,” for which the court may examine the “charging papers” to determine the elements of the statute to which the noncitizen was found guilty.[34]  Although essentially applying the same analysis, the differing terminology and methods often result in confusion and misunderstanding.

 

            Even after the court has conducted a divisible-statute analysis, the court may still be unable to determine whether a given conviction triggers deportability.  For example, the Fifth Circuit in United States v. Calderon-Pena,[35] found that, even after looking to the record of conviction, and “paring down” the statute to include only the elements to which the noncitizen pleaded guilty, the pared-down statute still did not establish that the offense of which the noncitizen had been convicted was invariably a crime of violence.

[25] 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 a deportability finding on the basis of a conviction for violating that statute, unless the statute is divisible into discrete subsections of acts 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).

[26] See generally Barbara Hines, Selected Issues Relating to Crimes of Moral Turpitude, in 2 American Immigration Lawyers Association, 2000-01 Immigration and Nationality Law Handbook 277, 280 (Randy P. Auerbach, et al., Eds., 2000).

[27] See, e.g., Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) (“domestic partner” requirement for the crime of domestic violence ground of removal is an “element” to be proven or admitted during the criminal proceedings); Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (victim’s age must be an element of conviction for offense to qualify as “sexual abuse of a minor”; such inquiry is limited to ‘formal categorical’ analysis); Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999) (aggravated felony); Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996) (applying a divisibility analysis to firearms offenses); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (crimes involving moral turpitude); Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979) (controlled substances offenses).

[28] See discussion in Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (stating in dictum that certain grounds of removal ‘invite’ inquiry into the ‘underlying facts’ of the case).  But see Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004) (in jury trial case, loss to the victim amount must have been found by jury beyond a reasonable doubt).

[29] See, e.g., INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (“loss to the victim or victims exceeds $10,000”).

[30] See Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. March 4, 2003) (limiting examination of “loss to the victim” for purposes of INA § 101(a)(43)(M), 8 U.S.C. § 1101(a)(43)(M) to the record of conviction); Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (same).

[31] See, e.g., INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (“term of imprisonment at least one year”).  But see Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001); Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (applying Taylor analysis to sentences to find that, as a recidivist sentence enhancement was not an “element” of an offense, such enhancement could not be considered in determining the length of sentence imposed).

[32] See, e.g., INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q) (“punishable by imprisonment for a term of 5 years or more”).  See also Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) (clarifying Apprendi v. New Jersey, 530 U.S. 466 (2000) rule that any factual sentence enhancement that increases potential punishment over statutory maximum constitutes an element of the offense and must be found true by the jury; relevant “statutory maximum” is not maximum sentence judge may impose after finding additional facts, but maximum judge may impose without any additional findings).

[33] See, e.g., Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).

[34] See, e.g., Flores v. Ashcroft, 350 F.3d 666 (7th Cir. Nov. 26, 2003) (in dictum finding that a noncitizen convicted of battery, when the victim was the noncitizen’s spouse, could be used to sustain deportability under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), even though the statute of conviction had no “domestic violence” element).

[35] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc) (Texas child endangerment statute is not a crime of violence).

CONVICTION - DIVISIBLE STATUTE ANALYSIS - TAYLOR ANALYSIS APPLIES TO CONVICTIONS RESULTING FROM PLEA AND COURT TRIAL AS WELL AS JURY TRIAL
Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005) (a court sentencing under the Armed Career Criminal Act may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary so as to serve as a predicate offense for a sentence enhancement).
http://laws.findlaw.com/us/000/03-9168.html      Relying on its sentencing enhancement cases, the First Circuit has refused to bar an immigration factfinder from examining a police report as part of the record of conviction in determining whether a noncitizen has been convicted of an aggravated felony. Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (relying on United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and United States v. Shepard, 231 F.3d 56 (1st Cir. 2000) to hold that there is no due process problem where factfinder considers police report as part of the record of conviction).  The United States Supreme Court, in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005), overruled United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and reversed United States v. Shepard, 231 F.3d 56 (1st Cir. 2000).  Therefore, Emile is no longer good law since the two cases on which it rests have been reversed or overruled by the United States Supreme Court, which expressly rejected the reasoning on which it relied.      Thanks to Dan Kesselbrenner for this analysis.      In Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005), the United States Supreme Court held that the categorical analysis of Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), applies to the determination of whether a conviction resulting from a guilty plea constitutes a generic burglary conviction, so as to served as a predicate conviction under the Armed Career Criminal Act to enhance a federal criminal sentence. The court therefore held that this determination was based on a categorical analysis of the elements of the offense of conviction, rather than the underlying facts of the case, and the sentencing court was precluded from considering the facts contained in police reports or complaint summaries. Instead, the Taylor analysis is limited to consideration of the charge to which a plea is entered, the plea agreement, and any facts agreed to by the defendant during the plea process. The Supreme Court also suggested that the same analysis (appropriately modified) would be applied to convictions resulting from court trials.      The court summarized its holding as follows: The question here is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary. We hold that it may not, and that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. Ibid. at 1257.      In the process of reaching its decision, the court stated: We agree with the First Circuit (and every other Court of Appeals to speak on the matter) that guilty pleas may establish ACCA predicate offenses and that Taylor's reasoning controls the identification of generic convictions following pleas, as well as convictions on verdicts, in States with non-generic offenses. See 348 F.3d, at 312, n. 4 (citing cases). Shepard wisely refrains from challenging this position, for the ACCA nowhere provides that convictions in tried and pleaded cases are to be regarded differently. It drops no hint that Congress contemplated different standards for establishing the fact of prior convictions, turning on the basis of trial or plea. Nothing to that effect is suggested, after all, by the language imposing the categorical approach, which refers to predicate offenses in terms not of prior conduct but of prior "convictions" and the "element[s]" of crimes. Taylor, 495 U.S., at 600-601, 110 S.Ct. 2143 (citing 18 U.S.C. 924(e)). Nor does the Act's legislative history reveal a lesser congressional preference for a categorical, as distinct from fact-specific, approach to recognizing ACCA predicates in cases resolved by plea. Taylor, 495 U.S., at 601, 110 S.Ct. 2143. And certainly, "the practical difficulties and potential unfairness of a factual approach are daunting," ibid., no less in pleaded than in litigated cases. Finally, nothing in Taylor's rationale limits it to prior jury convictions; our discussion of the practical difficulties inherent in looking into underlying circumstances spoke specifically of "cases where the defendant pleaded guilty, [in which] there often is no record of the underlying facts." Ibid. Our job, then, is to find the right analogs for applying the Taylor rule to pleaded cases. Ibid. at 1259.      This reasoning applies with equal force to the question whether Congress intended to apply the repeal of INA 212(c) relief retroactively to disturb the settled expectations of those defendants whose convictions resulted from jury trials, rather than from guilty pleas. The legislative history and purposes of the repeal are barren of any suggestion that Congress meant to distinguish between convictions resulting from jury trials, as opposed to guilty pleas, for this purpose.      The Supreme Court therefore reaffirmed the Taylor reasoning, which was announced in a case in which the conviction resulted from a jury trial, and applied it to convictions resulting from court trials and guilty pleas: The Court did not, however, purport to limit adequate judicial record evidence strictly to charges and instructions, id., at 602, 110 S.Ct. 2143 (discussing the use of these documents as an "example"), since a conviction might follow trial to a judge alone or a plea of guilty. In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge's formal rulings of law and findings of fact, and in pleaded cases they would be the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. With such material in a pleaded case, a later court could generally tell whether the plea had "necessarily" rested on the fact identifying the burglary as generic, Taylor, supra, at 602, 110 S.Ct. 2143, just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case. Ibid. at 1259-1260 (footnote omitted). Therefore, in the context of a conviction resulting from a court trial, the court applying a categorical analysis may consider the charge of conviction and the "bench-trial judge's formal rulings of law and findings of fact . . . ." Ibid. at 1259. The court may not look to police reports or complaint applications.      In the context of a conviction resulting from a guilty plea, the court applying a categorical analysis may consider the charge of conviction and "the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea." Ibid. at 1259-1260. The court may not look to police reports or complaint applications.

Fifth Circuit

DIVISIBLE STATUE ANALYSIS - CONJUNCTIVE/DISJUNCTIVE CRIMINAL CHARGES
Omari v. Gonzales, __ F.3d __, 2005 WL 1714364 (5th Cir. July 25, 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud," as recited in the statute does not mean that Omari was necessarily convicted of transferring fraudulently obtained property. Indictments often allege conjunctively elements that are disjunctive in the statute, and this does not require either the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty."), following Valansi v. Ashcroft, 278 F.3d 203, 215 n. 10 (3d Cir. 2002).
http://caselaw.lp.findlaw.com/data2/circs/5th/0361014p.pdf

Ninth Circuit

DISJUNCTIVE STATEMENT - MEANING
United States v. Karaouni, 379 F.3d 1139 (9th Cir. Aug. 24, 2004) ("Karaouni contends that no rational trier of fact could find beyond a reasonable doubt that his verification of the printed statement on the I-9 Form constituted a violation of 911 because the printed statement was phrased in the disjunctive. See Prince v. Jacoby, 303 F.3d 1074, 1080-81 (9th Cir.2002) (explaining that the use of the disjunctive "or" suggests that terms in a sequence should not be interpreted as synonyms). According to Karaouni, by checking the box next to the printed statement, which the government presumably drafted with care, he merely claimed that he was a citizen or a national, not that he was a citizen and not that he was a citizen and a national.").