Criminal Defense of Immigrants


§ 16.3 III. Categorical Analysis

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The analysis of whether a conviction triggers removal turns on the exact elements of the offense as defined by the legislature, sometimes as interpreted by the courts, and sometimes as elucidated by the “record of conviction.”[13]  This is called the “categorical” analysis because it depends upon the category of the crime as determined by its elements, not the facts of the specific case.  The categorical analysis should be specifically distinguished from a “factual” analysis in which the courts can look to what actually happened in order to determine, for example, whether the DHS has “reason to believe” a noncitizen has engaged in drug trafficking for purposes of establishing inadmissibility.[14]


                The categorical analysis is used both within and outside of the immigration context.  In the immigration context, the categorical analysis is used for the purposes of determining whether a conviction-based ground of removal[15] exists (e.g., a conviction constitutes a crime involving moral turpitude,[16] a firearms conviction,[17] a controlled substance offense,[18] or a domestic violence offense,[19] in addition to determining whether the conviction constitutes an aggravated felony[20]).  Outside the immigration context, the categorical analysis is also used, for example, when determining whether a prior criminal conviction can be used to convict a defendant of being a felon in possession of a firearm,[21] or when determining whether a prior conviction triggers a sentence enhancement for illegal re-entry,[22] or as a career offender in federal court.[23]  Taylor v. United States,[24] upon which most categorical analysis cases are based, and the recent Shepard[25] case from the United States Supreme Court are both concerned with the Armed Career Criminal Act,[26] but their analysis applies with full force to the immigration context. Therefore, cases from a number of contexts will be discussed, not just immigration cases.


The Ninth Circuit has described the categorical analysis (in the context of determining whether an offense is a crime of moral turpitude for deportation purposes) as follows:


To determine whether a specific crime falls within the category of “crimes involving moral turpitude,” we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575 (1990). See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005). Under the categorical approach, we must compare “the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed [by the Arizona statute] is broader than, and so does not categorically fall within, this generic definition.” Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003). Under this approach, “[t]he issue is not whether the actual conduct constitutes a crime involving moral turpitude, but rather, whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude.” Cuevas-Gaspar, 430 F.3d at 1017.

            If the statute of conviction is not a categorical match because it criminalizes both conduct that does and does not involve moral turpitude, we apply a “modified” categorical approach “under which we may look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction, including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.” Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004) (internal quotation marks omitted). We may not, however, “look beyond the record of conviction itself to the particular facts underlying the conviction.” Id. If the record of conviction that is introduced at the hearing before the IJ is not sufficient to establish that the offense qualifies as a basis for removal, “the government has not met its burden of proving that the conviction constitutes a predicate offense, and the conviction may not be used as a basis for removal.” Id. at 620-21; see also Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir. 2004) (“If the record of conviction does not establish that the offense the petitioner committed qualifies as an aggravated felony, the government has not met its burden of proving that the defendant committed an aggravated felony.”).[27]


The categorical analysis, as reflected in this description, often involves at least three steps. 


The first step is an examination of the statute of conviction itself, as written by the legislature, and interpreted under the law of the convicting jurisdiction.  See § § 16.4-16.6, 16.8, infra.  The second step, sometimes referred to as the “modified categorical” or “divisible-statute” analysis, is where the reviewing court is allowed to examine a limited number of documents called the “record of conviction” to further assist the reviewing court in determining which exact offense, within a divisible statute that includes more than one offense, was the specific offense of which the defendant was found guilty.  This second step is discussed in § § 16.15-16.33, infra.


The third step (which is really a repeat of the first) involves the application of the minimum conduct analysis, to determine whether the least culpable act required to violate the statute of conviction categorically falls within the ground of removal. See § 16.8, infra. 


                Unfortunately, many courts are less than consistent in applying this analysis.  The areas in which the circuits, and even individual decisions within a circuit, differ most are: (1) when the record of conviction may be examined,[28] (2) what information constitutes the record of conviction,[29] and (3) for what purpose the record of conviction may be examined.[30]  At least one court, in an unpublished decision, has found failure to apply the categorical analysis violates due process.[31]

[13] See § 16.15, infra.

[14] INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i).  See § 21.6, supra.  See also Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. Jun. 26, 2006) (distinguishing between INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), and 8 U.S.C. § 921(a)(33)(A)(i) [sentence enhancement for person with prior domestic violence conviction found in possession of a firearm], in that the former requires that the domestic relationship must be an element of the offense, where the latter merely requires that the offense was in fact committed against someone with a domestic relationship).

[15] Compare a conduct-based ground of removal, such as the reason to believe drug trafficking ground of inadmissibility.  INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i).

[16] Matter of Short, 20 I. & N. Dec. 136 (BIA 1989).

[17] Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996).

[18] Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979).

[19] Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).

[20] Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999).

[21] See, e.g., United States v. Ladwig, 432 F.3d 1001 (9th Cir. Dec. 27, 2005).

[22] See, e.g., United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (sexual battery, under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a “forcible” sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)); United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. Feb 27, 2003) (Texas conviction of unauthorized use of a motor vehicle, in violation of Texas Penal Code Ann. § 30.02(a), is not a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense is not listed in Application Note 1(B)(ii)(II) and does not have as an element the use, attempted use, or threatened use of physical force against the person of another), vacated and superseded on rehearing, 388 F.3d 466 (5th Cir. Oct. 15, 2004).  But see United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 2005) (taking indecent liberties with a child, in violation of North Carolina General Statutes Annotated § 14-202.1(a)(1), is a crime of violence, as sexual abuse of a minor, for sentencing purposes under U.S.S.G. § 2L1.2, following illegal re-entry; this holding based on “common meaning,” rather than “categorical” analysis); United States v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. Mar. 25, 2003) (since court’s consideration of whether a prior conviction constitutes a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) does not require a determination whether the offense “by its nature” fits a certain definition, as opposed to the question whether a conviction constitutes a “crime of violence” under 18 U.S.C. § 16, the court will not employ a categorical analysis that ignores the facts of the case).

[23] See, e.g., United States v. Granbois, 376 F.3d 993 (9th Cir. July 22, 2004) (conviction under 18 U.S.C. § 2244(a)(3), sexual contact with a child, is a “crime of violence” for purposes of the Career Offender Guideline, U.S.S.G. § 4B1.1).

[24] Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990).

[25] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (Mar. 7, 2005) (applying Taylor to convictions arising from a guilty plea).

[26] 18 U.S.C. § 924(e) (imposing a minimum 15-year prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies).

[27] Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163-1164 (9th Cir. Nov. 15, 2006) (emphasis added).

[28] See § § 16.10-16.14, infra.

[29] See § § 16.22-16.33, infra.

[30] See § 16.18, infra.

[31] United States v. Meza-Corrales, 2006 U.S. Dist. LEXIS 11199 (E.D. Wash. Mar. 1, 2006) (immigration judge violated due process by bypassing categorical analysis of Oregon conviction of attempted sexual abuse in the first degree, in violation of O.R.S. § 161.405(2)(c) [which did not contain an element of the age of the victim], by improperly examining the record of conviction, though the statute was not divisible, and by improperly going beyond the record of conviction to examine police reports to determine age of the victim).  See also United States v. Pintado-Isiordia, 448 F.3d 1155 (9th Cir. May 26, 2006) (per curiam) (because record unclear whether district court applied either the categorical or modified categorical analysis, defendant’s sentence for illegal re-entry was vacated and remanded for district court determination as to whether prior conviction for assault with a firearm qualifies as a “crime of violence” under either approach).



Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009) (Illinois conviction of "knowingly fail[ing] to report" for periodic imprisonment "to the Jefferson County Jail, a penal institution", in violation of Ill. Comp. Stat., ch. 720, 5/31-6(a), did not categorically constitute a "violent felony" for purposes of applying the Armed Career Criminal Act's 15-year mandatory prison term enhancement of sentence for a conviction of being a felon unlawfully in possession of a firearm, in violation of 18 U.S.C. 922(g), because it does not have "as an element the use, attempted use, or threatened use of physical force against the person of another, a does not involve conduct that presents a serious potential risk of physical injury to another), following Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see also Shepard v. United States, 544 U.S. 13, 16-17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Seventh Circuit

Sanchez v. Holder, ___ F.3d ___, ___, 2014 WL 3329186 (7th Cir. Jul. 9, 2014) (True, the IJ and the Board retain substantial discretion in making the decision to consider evidence outside the formal record of conviction. Mata"Guerrero v. Holder, 639 F.3d 276, 277 (7th Cir.2011). However, the adjudicator must still exercise that discretion: The Board should have explained its determination that additional evidence was not necessary or appropriate to resolve the moral turpitude question, if that was indeed what the Board thought. See Silva"Trevino, 24 I. & N. Dec. at 704. But if anything, the Board's reasoning suggests that additional evidence was necessary.).

Ninth Circuit

The Practice Advisory "UPDATE: Using the California Chart and Notes After Moncrieffe v. Holder and Olivas-Motta v. Holder" provides a brief overview of the holdings in the Supreme Court Moncrieffe decision and the Ninth Circuit Olivas-Motta decision. It also sets out a preliminary update on some Calif. offenses in the Calif. Notes & Chart. The 2013 version of the Calif. Notes and Chart is available for download at To download this new advisory go to: and click on "Update for Criminal Defenders: Using the Calif. Chart & Notes after Moncrieffe and Olivas-Motta."
Young v. Holder, 697 F.3d 976, *982 (9th Cir. Sept. 17, 2012) (en banc) (In both criminal and immigration contexts, we often must inquire whether an individual's prior state conviction constitutes a conviction for a generic federal crime. See, e.g., Gonzales v. Duenas"Alvarez, 549 U.S. 183, 185"86, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (applying, in the immigration context, the approach set forth in Taylor v. United States, 495 U.S. 575, 599"600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), in the criminal sentencing context); United States v. Aguila"Montes de Oca, 655 F.3d 915, 922 (9th Cir.2011) (en banc) (per curiam) (Bybee, J., opinion) (noting that we have extended that Taylor/Shepard framework to a variety of contexts, including immigration). The categorical and modified categorical frameworks, first outlined by the Supreme Court in [ Taylor ] establish the rules by which the government may use prior state convictions to enhance certain federal sentences and to remove certain aliens. Aguila"Montes de Oca, 655 F.3d at 917.).
Young v. Holder, 697 F.3d 976, *985 (9th Cir. Sept. 17, 2012) (en banc) (We hold that federal law principles determine the effect of a guilty plea under the modified categorical approach.).
United States v. Santacruz, 563 F.3d 894 (9th Cir. Apr. 20, 2009) (per curiam) ("this circuit applies the "categorical" and "modified categorical" approaches of Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), when determining whether a crime involves moral turpitude), following Navarro-Lopez v. Gonzales, 503 F.3d 1062, 1067 (9th Cir. 2007) (en banc).


Almaza Arenas (overruling Young v. Holder) was vacated. It's going en banc. Many of you may be aware of this already, but if not--here it is. Now arguably, Moncrieffe still trumps Young v. Holder on the burden issue (for affirmative applications for relief), but this makes our advisory world much more challenging when advising undocumented clients. Here is an update sent to criminal defenders in the Ninth Circuit on this case, where the court en banc will consider what is a divisible statute under Descamps, and may consider who has the burden of proving whether a divisible statute is a bar to eligibility for relief. Below the first section, which is instructions for defenders, is a brief analysis of the issues and possible outcomes. Thanks to Kathy Brady. Almanza-Arenas v. Holder, 771 F.3d 1184 (9th Cir. 2014) will be Heard En Banc -- Divisible statutes, Burden of Proof Bottom line for defenders: This case concerns when a statute is divisible. The advice on the matter has not changed. Where possible, the best practice is to make a record of a plea to specific conduct that would avoid an immigration penalty -- even if it appears that the statute is not truly divisible, and regardless of whether the person is fighting deportability or applying for relief. For example, Almanza-Arenas addresses whether Cal Veh Code 10851 (taking a vehicle with intent to "temporarily or permanently" deprive the owner) is a crime involving moral turpitude (CIMT). Taking with permanent intent is a CIMT, taking with temporary intent is not. We ask that whenever possible, the defendant should plead to taking with intent to temporarily deprive the owner. This probably always will be the advice. Even if we get good law, there always is the chance that overworked immigration judges might not have the correct analysis, and this makes it crystal clear. However, in terms of the actual law, depending on how this case goes, the Ninth Circuit might find that either: (a) VC 10851 and statutes like it are not divisible and must be judged solely on the minimum conduct ever prosecuted under the statute. In that case, even a specific plea to permanent taking is not a CIMT, because the minimum conduct is temporary taking; or (b) VC 10851 is divisible. In that case, the question is burden of proof. If the issue is whether a permanent resident is deportable for moral turpitude, the government has the burden of proving that the person in fact was convicted of permanent intent. The question is, what happens if the immigrant is applying for relief, like cancellation. Does the Young rule stand, which would mean that the immigrant must produce a record of conviction that proves temporary intent? Or, as the Almanza-Arenas panel held, did the Supreme Court implicitly overrule Young, so that an inconclusive record of conviction would mean Mr. Almanza-Arenas would be eligible for relief, even if the statute were divisible? You can see why we would like to avoid these questions by having the person specifically plead to temporary intent, where possible. But where that is not possible -- or where that was not done in a prior conviction that we must analyze -- Almanza-Arenas will help determine the rules. Analysis. The Almanza-Arenas review presents an opportunity to clarify the categorical approach. Here is how I understand the basic issues. A great team, including Jayshri Srikantiah of Stanford Law School and Kara Hartzler of the Fed Defenders, is working on the case -- they can correct this summary as needed. The Almanza-Arenas panel decision (Almanza-Arenas v. Holder, 771 F.3d 1184 (9th Cir. 2014)) addressed two questions about divisible statutes and the categorical approach. Question 1: Is vehicle taking, Cal Veh Code 10851, "truly divisible" between alternative elements, under the test set out by the U.S. Supreme Court in 2013 in Descamps and Moncrieffe? (If a criminal statute is truly divisible, an immigration (or federal criminal court) judge may look at the individual's record of a conviction to see which of the statutory offenses the person was convicted of.) Question 2: If a statute is truly divisible for purposes of eligibility for some relief -- here, cancellation of removal -- then who has the burden of proof and document production? Currently under Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), the immigrant (read, the often indigent, detained, and unrepresented immigrant) has the burden of obtaining the record of conviction from the prior criminal case, and that record must prove that he or she was convicted of an offense that does not bar the relief. Earlier, better law had provided that due to the nature of the categorical approach, if an inconclusive record of conviction under a divisible statute is before the immigration judge, the immigrant has met his or her burden of showing eligibility for relief. Almanza-Arenas found that: Q 1: Cal Veh Code 10851 is not truly divisible as a crime involving moral turpitude, because a jury is not required to unanimously agree that the intent was to deprive the vehicle's owner permanently as opposed to temporarily; and Q 2: Even if the statute had been divisible, the BIA was wrong to apply the Young rule because in Moncrieffe the Supreme Court effectively overturned Young. Therefore, where a statute is divisible, a noncitizen meets his or her burden of proving eligibility for relief if an inconclusive record of conviction is before the immigration judge. Now the Ninth Circuit en banc will hear Almanza-Arenas. The bad news is that at this point the panel decision is vacated and the Young burden of proof rule applies. This is bad, but not a surprise -- it was expected that the court en banc would review the question. The ambivalent news is that a likely, although not guaranteed, outcome of the Almanza-Arenas en banc review is that the court will find that Veh Code 10851 is not divisible - yay - and therefore that the Young issue is not before the court - boo. Again, Young only addresses who carries the burden when a statute is divisible. The significant upside of this result would be that it could cement the Ninth Circuit's ruling in cases like Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014), that divisibility requires jury unanimity on statutory alternatives. There the Ninth Circuit held that under Descamps a statute is not divisible unless (a) the statute literally sets out the different elements, phrased in the alternative ; (b) at least one, but not all, of the alternatives would trigger the removal ground at issue; and (c) (the great requirement) in order for these alternative statutory phrases to be "elements" rather than mere means to commit the offense, there must be law requiring a jury to unanimously decide between the alternatives in order to find the defendant guilty. The sua sponte request for rehearing en banc was rejected in Rendon, but with dissents, including one by Judge Kozinski on the mysterious footnote 2 in Descamps (782 F.3d 466). If the Ninth Circuit en banc were to use Almanza-Arenas to upheld the Rendon jury unanimity interpretation, that would further nail down the victory for our side. The Almanza-Arenas statute, Veh Code 10851, presents a clear example for the court to address. The downside would be that the court en banc well might rule that because the statute is not divisible it should not reach the Young issue, which would leave Young standing until it can be litigated another day. Or possibly the anti-Rendon faction would have enough votes to find that Veh Code 10851 is divisible, in which case it could get to the Young issue. Young is a very harmful decision. Still, a good reading of Descamps/Moncrieffe/Rendon, etc. would mean that fewer and fewer statutes are held divisible, and therefore the amount of cases where Young even comes into play decreases commensurately. For more discussion of these decisions and questions, see ILRC advisory "How to Use the Categorical Approach Now" at ;