Criminal Defense of Immigrants


§ 16.2 II. Basic Analysis of Whether a Conviction Will Trigger a Ground of Removal

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To determine whether a given conviction will trigger a conviction-based ground of removal, it is necessary to go through the following analysis:


(1)     Examine the record of conviction[1] to identify the statute that defines the offense of conviction on the date of the offense.  This examination is limited to determining the section and subsection number or offense of which the person was convicted.[2]

(2)     Determine whether judicial decisions have modified the essential elements specified by the Legislature.[3]

(3)     If the statute of conviction includes only one offense, with one set of essential elements,[4] determine the minimum conduct[5] necessary to satisfy the essential elements of the criminal offense.

(4)     If the statute of conviction punishes multiple offenses, as delineated by subsections or a disjunctive,[6] determine by reference to the record of conviction[7] (if possible) the set of elements of which the person was found guilty.  Then determine the minimum conduct necessary to satisfy the essential elements of the criminal offense of conviction.

(5)     Compare the set of elements necessary to convict to the elements of the relevant ground of removal.

(6)     If there is any instance in which all essential elements necessary to convict under the criminal statute are established, yet the offense does not fall within the ground of removal, then the conviction in question must be held not to fall within that ground.[8]


The nature of a conviction is determined according to the elements of the offense, rather than the facts of the offense.[9]  The courts may not go behind the record of conviction to ascertain the facts of the case,[10] in order to determine whether the facts in the case, beyond the minimum facts necessary to convict, trigger a ground of removal.


If it is not possible to determine, in step (4), above, the set of elements of which the noncitizen was convicted, the set of elements most beneficial to the party with the burden of proof will be applied to steps (5) and (6).[11]


All reasonable doubts must be found in favor of the noncitizen.[12]

[1] See § § 16.15-16.33, infra.

[2] See § 16.5, infra.

[3] See § 16.6, infra.

[4] See § 16.14, infra.

[5] See § 16.8, infra.

[6] See § § 16.10-16.13, infra.

[7] See § § 16.15-16.33, infra.

[8] See § 16.8, infra.

[9] See § § 16.18-16.20, infra.

[10] See § 16.17, infra.

[11] The government generally bears the burden of proof when the respondent is charged with a ground of deportation.  See § 17.9, infra.  Who bears the burden in inadmissibility proceedings is more complicated.  See § 18.6, infra.  See also § 15.26, supra.

[12] See § 16.38, infra.



Ninth Circuit

Young v. Holder, 697 F.3d 976 (9th Cir. Sept. 17, 2012) (en banc) (Under the modified categorical approach, a guilty plea to a conjunctive count does not necessarily admit every possible version of the crime. . . . [U]nder the modified categorical approach, when a conjunctively phrased charging document alleges several theories of the crime, a guilty plea establishes conviction under at least one of those theories, but not necessarily all of them. . . . In sum, when either A or B could support a conviction, a defendant who pleads guilty to a charging document alleging A and B admits only A or B. Thus, when the record of conviction consists only of a charging document that includes several theories of the crime, at least one of which would not qualify as a predicate conviction, then the record is inconclusive under the modified categorical approach.).


ILRC is pleased to release a new resource on how to identify new defenses using the categorical approach. See How to Use the Categorical Approach Now, available at