Safe Havens

(C)  Divisible Statutes.  It is possible that some portion of a given statute will fall within a category included within the aggravated felony definition, and other portions will not.  This is what is considered a “divisible statute.”  If some of the sub-offenses or different means of committing the offense listed within the same statute would be aggravated felonies, but others would not, the court will look to the “record of conviction” to determine which part of the statute (and therefore which minimum elements) constitutes the defendant’s conviction.[121]  If the record of conviction does not establish that the defendant was convicted of an aggravated felony, the conviction should not trigger removal on this ground.  It is therefore sometimes possible to arrange a guilty plea to a portion of a divisible statute that does not fall within an aggravated felony category, and thereby avoid aggravated felony status.

[121] In Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999), the BIA for the first time applied the “divisible statute” analysis to an aggravated felony.  It held that where a state statute encompassed different offenses, some of which were “crimes of violence” and others of which were not, it is necessary to look at the record of conviction and other documents admissible as evidence in immigration court to prove a criminal conviction in order to determine whether the elements of the particular offense of which the noncitizen was convicted constitutes an aggravated felony.  The “divisible statute” analysis is also used for the purposes of determining whether a conviction constitutes a crime involving moral turpitude, Matter of Short, 20 I. & N. Dec. 136 (BIA 1989), a firearms conviction, Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996), and a controlled substance offense, Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979).