Criminal Defense of Immigrants

(B)   Categorical Analysis.  The categorical analysis, discussed more fully in Chapter 16, infra, including divisible statute analysis and minimum conduct analysis, is used to determine whether a conviction will trigger a conviction based ground of removal. 

(1)  Conviction Based Grounds.  While categorical analysis[280] and divisible statute analysis[281] apply regardless of whether a noncitizen is charged with a ground of inadmissibility or deportability, the result may differ because the DHS bears the burden of proof in the deportation context, while the noncitizen bears the burden in the inadmissibility context. 

                Example:  A noncitizen is convicted of burglary with intent to commit theft or any felony, and the issue is whether this offense is a crime of moral turpitude.  In deportation proceedings, the noncitizen wins because the government cannot show (a) that the conviction was for burglary with intent to commit theft vs. any other felony, and (b) that the term “any felony” includes only CMT offenses. 

In inadmissibility proceedings, the noncitizen loses because s/he cannot prove that the conviction was not for theft, as opposed to any felony.

(2)  Minimum Conduct Analysis.  In the burglary example above, the noncitizen in inadmissibility proceedings was inadmissible because s/he could not prove s/he had not intended to commit theft.  However, s/he was not inadmissible because the “any felony” language included offenses that could be considered crimes of moral turpitude.  Even in inadmissibility proceedings, the noncitizen has the benefit of the minimum conduct rule, which requires that where a statute cannot be further divided,[282] an immigration court must look to the minimum conduct proscribed under the statute to determine whether the noncitizen has been convicted of a crime that triggers a ground of removal.[283]  Because the minimum conduct punishable within the phrase “any felony” is not necessarily a CMT, the immigration court cannot hold that the noncitizen is inadmissible for conviction of a CMT.

(3)  Conduct Based Grounds.  Because there is generally no statute of conviction involved where a noncitizen is charged under a conduct based ground of inadmissibility based on an admission by the noncitizen,[284] “reason to believe” on the part of the DHS,[285] or some other test, the categorical and divisible statute analysis does not apply.  Counsel should examine what standards are required under the specific conduct-based ground to determine what is necessary to prove or disprove the applicability of that ground to the client.

[280] See § § 16.3-16.8, infra.

[281] See § § 16.9-16.14, infra.

[282] See § 16.14, infra.

[283] See § 16.8, infra

[284] See § 18.8, infra.

[285] See § 21.6, infra.