Safe Havens

(B) Discrete Subsections.  There are two basic situations in which a statute may correctly be said to be “divisible.”  The clearest case of a divisible statute is where a statute has a number of different subdivisions, each defining a single separate crime. 

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.”[36]  If the judgment, for example, specifies only that the defendant was convicted of violating N.Y. 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 § 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 as a whole does not establish which subdivision the defendant was convicted of violating, then the party with the burden of proof cannot show that the conviction clearly was a firearms conviction.  Obviously, if the record specifically identifies (2), (4), or (5) as the offense of conviction, the conviction cannot be considered a firearms conviction.  Since (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.[37]

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

[37] 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 USSG § 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).