(A)  Lack of Authority to Reject Categorical Analysis.               The United States Supreme Court has consistently held that the Taylor categorical analysis applies to the determination of whether the elements of the offense of conviction fall within a conviction-based statutory definition that triggers immigration or federal sentence consequences.  The BIA has, until recently, consistently applied this analysis to this question in the immigration context.  The holdings of the circuits are likewise consistent on this point, where these issues have been raised.  Historically, there has been no judicial authority for straying outside the elements of the statute of conviction (improperly to consider the facts of the case, even if they are included within the record of conviction), when the question is comparing a conviction to a conviction-based ground of deportation.  Counsel must be alert to enforce these limitations, to prevent improper deportations based on failure or refusal to follow the Taylor analysis.  A decision does not stand for a proposition that was neither raised nor decided in the case.[63]

               

Five circuit court decisions, and a recent decision from the BIA, however, have held or suggested the court in some instances may use facts within the record of conviction, even though they do not constitute elements of the offense, to bring the offense of conviction within a ground of deportability.  Some courts have limited this extention to certain aggravated felony offenses that can be said to require proof “extra elements” beyond those required to convict in order to sustain deportability; other circuits seem poised to abandon the categorical analysis completely. 

 

                First Circuit.  In Conteh v. Gonzales,[64] the First Circuit chose to depart from the Ninth, Fifth and other circuits by defining “modified categorical” analysis[65] as an examination of the record of conviction beyond the second step of the Taylor/Shepard categorical analysis.[66]  The court found that when a court engages in a “modified categorical analysis,” rather than being limited to looking to the record of conviction to determine the elements of the crime to which the noncitizen admitted or was found guilty of committing, the Immigration Judge or reviewing court may look to any facts in the record of conviction to determine nature of the crime, including those facts to which the noncitizen did not admit or was not found guilty.[67]  The test applied by the First Circuit first asks whether the crime of conviction is at least as broad as the ground of removal (applying the two-step Taylor analysis), and then looks to any facts reflected in the record of conviction to determine whether the actual offense committed falls within the ground of removal.[68]

 

In the context of determining whether a conspiracy to commit a fraud offense was an aggravated felony, the court found that it could look beyond the findings of the jury to the loss amounts reflected in the indictment (even though these had not been found true by the jury) and a finding of loss made by the court for sentencing purposes.[69]

 

                The court specifically rejected the Ninth Circuit’s use of the term “modified categorical approach” as a mere description of the second step of the Taylor categorical analysis, finding that the Ninth Circuit had “drained much of the specialized meaning from the term . . . giving lip service (and no more) to the word ‘modified’ in the locution ‘modified categorical approach.’”[70]  The court failed to notice that the Ninth Circuit created the term specifically for the purposes of distinguishing the second step of the Taylor analysis, which was added by the United Supreme Court to the strict categorical analysis first applied by the Ninth Circuit in the context of the Armed Career Criminal Act.[71]  The court also failed to note that the United States Supreme Court had itself applied the Taylor analysis, and no more, in the immigration context.[72]  Rather, the court cited two BIA decisions as appearing to use the approach adopted here by the first circuit.[73]

 

                The Conteh approach goes far beyond the Third Circuit’s “extra element” analysis, see below, in that it theoretically applies to all conviction-based grounds of removal.  This departure from Taylor has yet to be applied in any other First Circuit cases, and should be resisted.

 

                Second Circuit.  In Sutherland v. Reno,[74] the Second Circuit found that a Massachusetts conviction of sexual assault and battery of a minor triggered the domestic violence deportation ground because the victim was the noncitizen’s 19-year-old stepdaughter and a household member, who was therefore a protected person under Massachusetts family violence law.  The petitioner did not object that the facts concerning the stepdaughter’s status were not shown by the record of conviction.  In fact, the decision does not discuss the source of those facts, or the lawfulness of basing a deportability decision upon them.  Sutherland does not in fact hold that it is proper to use a fact of the underlying offense, as opposed to restricting consideration to the elements of the offense of conviction, in determining whether a state conviction falls within the ground of removal.  As to these issues, Sutherland is therefore nothing more than dictum.

 

                Third Circuit.  In Singh v. Ashcroft,[75] the Third Circuit held that under the formal categorical analysis of Taylor v. United States, a conviction of unlawful sexual contact was not an aggravated felony of sexual abuse of a minor offense.  The court reasoned that “Singh’s statute of conviction is not phrased in the disjunctive in a relevant way [because] the statute is silent on the critical matter of the age of the victim.”[76]  Because the statute of conviction was not disjunctive in the sense that it included one or more offenses that had age of the victim as an element, and other(s) that did not, the statute did not invite the court to engage in divisible statute analysis.  The court then considered whether the aggravated felony category, sexual abuse of a minor, invited the court to look beyond the elements of the statute, and concluded that it did not:

 

Thus we must ask whether 8 U.S.C. §   1101(a)(43)(A) (and specifically “sexual abuse of a minor”) invites inquiry-that is, whether it is more like the amount-of-loss provision of 8 U.S.C. §   1101(a)(43)(M)(i), or more like provisions for “burglary,” 8 U.S.C. § 1101(a)(43)(G), or “crime of violence,” 8 U.S.C. §   1101(a)(43)(F).

 

            We think it clear that “sexual abuse of a minor” belongs in the latter category.  First, it is listed in the same subsection as “murder” and “rape,” two terms that share the common law pedigree of “burglary,” which was examined in Taylor itself.  Applying the maxim noscitur a sociis,[77] we would place “sexual abuse of a minor” in a similar mold.  Second, nothing in the phrase “sexual abuse of a minor” signals that a factual investigation is called for.  Congress could have enacted, for example, the language “any sex offense, where the victim of such offense was a minor”; such language, parallel to provisions like 8 U.S.C. § 1101(a)(43)(G) & (S), might direct our inquiry into the facts of the crime rather than its definition.  Third, in an area that so routinely implicates state laws, Congress is presumed to legislate against the backdrop of existing state statutes.  The widespread existence of state statutes specifically criminalizing sexual abuse of a minor, see, e.g., Ala.Code § 13A-6-67 (“Sexual abuse in the second degree”); Cal.Penal Code § 288.5 (“Continuous sexual abuse of a child”); 11 Del. C. § 778 (“Continuous sexual abuse of a child”); 18 Pa. Cons.Stat. §   6312 (“Sexual abuse of children”), supports the conclusion that Congress intended Taylor’ s formal categorical approach to be applied in this case.[78]

 

The essence of the holding of Singh, therefore, was that the strict categorical analysis required by Taylor applied to the question whether the Delaware conviction of unlawful sexual contact in the third degree constituted a sexual abuse of a minor aggravated felony, because (a) the Delaware statute had no element of age, and (b) the aggravated felony sexual abuse of a minor category did not “invite” the court to look to any extra elements beyond those required to convict.

 

                In Alaka v. Attorney General,[79] however, the court expressly found that the “loss to the victim” requirement of INA § 101(a)(43)(M)(i)[80] was an extra element that “invites further inquiry [beyond the strict categorical analysis] because it specifies a mandatory loss amount.”[81]

 

                Fifth Circuit.  In James v. Gonzalez,[82] the Fifth Circuit adopted the Third Circuit’s “extra-element” analysis[83] as applied to the aggravated felony fraud category and determination of the loss to the victim.  Therefore, the court held that it could beyond the loss amount reflected in the charge, to the loss as determined by the sentencing judge, at least where the count of conviction described an overall scheme to defraud.[84]

                Seventh Circuit.  In Gattem v. Gonzales,[85] the Seventh Circuit held an Illinois conviction for solicitation of a minor to commit a sexual act qualified as a conviction for sexual abuse of a minor, and thus as an aggravated felony rendering a foreign national ineligible for cancellation of removal.  The holding focused on whether the conduct of soliciting a minor under the statute of conviction fell within the aggravated felony definition of sexual abuse of a minor.  This decision did not result in a holding that it was proper to use a non-element fact from the record of conviction, because the respondent did not raise these issues or contest proof of the age of the victim of the offense: “Gattem acknowledged the conviction and admitted that the individual from whom he had solicited a sexual act was a juvenile under the age of 17.”[86]

 

                In Sharashidze v. Gonzalez,[87] the noncitizen had been convicted of indecent solicitation of a sexual act, which does not require any proof of age.  The criminal complaint charged that the noncitizen had asked a mother to have sexual contact with the mother’s child.  Citing Gattem, the court found that the indecent solicitation statute was divisible because the offense could in fact involve either an adult or a minor, and then looked to the record of conviction to determine that the offense involved a child because the intended victim was a child, even though it was the mother who received the solicitation.[88]  The age of the victim, however, was not an element of the offense.

 

Although counsel can argue that the issue in Sharashidze was only whether solicitation of a child’s mother was equivalent to a sexual offense involving the child him/herself, it appears clear that (at least in the case of sex offenses) the Seventh Circuit does not limit its categorical analysis or divisible statute analysis to the elements of the statute of conviction, but looks beyond the elements to facts in the record of conviction to determine both whether a statute is divisible and whether the offense qualifies as an aggravated felony.  Sharashidze made no effort to couch its opinion in an “extra element” analysis, and so the Seventh Circuit’s treatment of the categorical analysis appears to go beyond the “extra element” analysis adopted by the Third and Fifth circuits.

 

Board of Immigration Appeals.  In Matter of Gertsenshteyn,[89] the BIA held that:

 

[W]here Congress has defined an aggravated felony to include a component (e.g., ‘commercial advantage’) that is neither an element of the underlying offense nor a basis for a sentence enhancement, and thus would not normally be alleged in a criminal charging instrument, it would defeat the statute to require the application of the categorical (or modified categorical) approach, in which only the statute itself and the limited material constituting the record of conviction may be consulted.[90]

 

The BIA admitted that if the BIA’s prior law on categorical analysis had been followed, it would have been impossible to determine whether Gertsenshteyn’s offense qualified as an aggravated felony.[91]  The court then looked to the three statutes[92] listed in the aggravated felony prostitution definition, finding that none of those statutes required proof that the offense was committed “for commercial advantage,” in order to sustain a conviction.  The court therefore determined that Congress must have intended the immigration authorities to look beyond the mere statutory elements of those statutes to determine whether the offense was done for “commercial advantage,” since to require otherwise would “have effectively rendered section 101(a)(43)(K)(ii) a nullity . . . .”[93]

 

While this analysis is largely the same as that now applied in the Third and Fifth Circuits, the BIA went beyond merely adopting an “extra element” analysis by concluding that the question of whether a violation of 18 U.S.C. § 2422 was committed for commercial advantage, as required to find sustain deportability as an aggravated felony prostitution offense,[94] “may be proved by any evidence, including evidence outside the record of conviction.”[95]  Thus, apparently any information may be submitted to the IJ to determine whether the “extra element” has been met, including unincorporated police reports, admissions of the respondent before the IJ, letters from disgruntled ex-spouses, etc. 

 

The BIA equated this record-of-conviction-free analysis to the determination of whether an offense is a “particularly serious crime” for asylum and withholding purposes, and found that “[a]lthough some burden to the system may result from the inapplicability of the categorical approach in this instance, we believe such burden to be minor.”[96]  Here the BIA paid very little heed to the decades of caselaw stating that the administrative courts should not in effect re-try a criminal matter by looking beyond the record of conviction,[97] and did not provide a reasoned analysis of the necessity to overrule it.  Applying this approach would, moreover, open the door to respondent to introduce any evidence whatever on these issues as well, resulting in the relitigation of the issues of the criminal case, and beyond as well, turning a conviction-based ground into a conduct-based ground of deportation.

 

The BIA admitted that it would be possible to establish the “commercial advantage” element by looking to the record of conviction, and gave no justification for the holding that the immigration authorities could now look beyond the record of conviction, other than to state that abandoning the record of conviction limitation would give “life” to the commercial advantage restriction, because such information might not otherwise be “readily” available.[98]

 

This decision could have extremely dangerous implications for other grounds of removal, particularly aggravated felony fraud, sexual abuse of a minor, and the domestic violence ground of removal.  It is unclear whether any circuit would go so far.  , Counsel should strongly argue that the BIA should not be allowed to look beyond the record of conviction, even if applying an “extra element” analysis.

[63] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545 (1992) [“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

[64] Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (federal conviction for conspiracy under 18 U.S.C. § 371, where the underlying offense was a violation of 18 U.S.C. § 1344 [bank fraud] with a loss in excess of $10,000, is an aggravated felony fraud offense for immigration purposes).

[65] Compare Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004) (describing “modified categorical” as synonymous with second step of Taylor/Shepard categorical analysis); Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. Aug. 24, 2006) (same); Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (extending beyond Taylor/Shepard analysis only when the ground of removal at issues requires “extra element” analysis).

[66] The court’s basis for this departure was that respondents in removal proceedings had no constitutional rights under the Sixth Amendment, that applying a Taylor categorical analysis impermissibly inflated the Government’s burden to demonstrate removal from clear and convincing to beyond a reasonable doubt, and because the court did not want to “impede unduly the Executive Branch’s exercise of the civil removal power.”  Conteh v. Gonzales, 461 F.3d at 55-56.

[67] Id. at 56 (“by reference to facts that can be mined from the record of conviction”). 

[68] Id. at 55-56.

[69] Id. at 60-62.

[70] Id. at 54-57.

[71] See United States v. Parker, 5 F.3d 1322, 1324-1326 (9th Cir. 1993); United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir. 1988); United States v. Springfield, 829 F.2d 860 (9th Cir. Oct. 6, 1987).

[72] See Leocal v. Ashcroft, 553 U.S. 1, 7 (2004) (“[t]his language requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to the petitioners crime.”).  In fact, in Gonzales v. Duenas-Alvarez, __ U.S. __, 127 S.Ct. 815 (Jan. 17, 2007), the court cited Conteh in recognizing that the second step of the Taylor analysis is widely known as the “modified categorical approach.”

[73] Conteh v. Gonzales, 461 F.3d at 55, citing Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651 (BIA 2004); Matter of Pichardo-Sufren, 21 I. & N. Dec. 330 (BIA 1996).  Note that Matter of Pichardo-Sufren, supra, also applied the documents listed in 8 C.F.R. § 3.41(d) to determine the nature of the conviction, which the Conteh court specifically rejected.  Conteh, supra, at 58.  In Vargas-Sarmiento, 23 I. & N. Dec. at 655, the BIA found that the respondent had initially been charged with murder, and used that information to determine that the respondent must have been convicted of either of two subsections of a divisible manslaughter statute because only those two subjections were lesser-included offenses to murder.  This analysis did not require any examination into the facts of the case.

[74] Sutherland v. Reno, 228 F.3d 171, 176-78 (2d Cir. 2000).

[75] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004).

[76] Id. at 163.

[77] “The meaning of a word is or may be known from the accompanying words.”  Black’s Law Dictionary 1060 (6th ed.1990).

[78] Singh v. Ashcroft, supra, at 164.

[79] Alaka v. Attorney General,  456 F.3d 88 (3d Cir. Jul. 18, 2006).

[80] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[81] Alaka v. Attorney General, 456 F.3d 88 at 106.  See also Nugent v. Ashcroft, 367 F.3d 162, 175 (3d Cir. 2004).

[82] James v. Gonzales, 464 F.3d 505 (5th Cir. Sept. 5, 2006) (federal conviction for aiding and abetting bank fraud, in violation of 8 U.S.C. § § 2, 1344, is an aggravated felony fraud offense involving loss to the victim in excess of $10,000, where noncitizen pleaded to a guilty count involving a loss of $9,500, but the count of conviction also alleged a grander scheme to defraud and the actual loss determined at sentencing exceeded $10,000).

[83] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004).

[84] James v. Gonzales, supra, citing Khalayeh v. INS, 287 F.3d 978 (10th Cir. 2002) (permitting reference to sentencing’s judge findings where count of conviction charged a scheme, and defendant agreed in plea agreement to pay full amount found by sentencing judge).

[85] Gattem v. Gonzales, 412 F.3d 758 (7th Cir. June 20, 2005).

[86] Id. at 761.

[87] Sharashidze v. Gonzoles, 480 F.3d 566 (7th Cir. Mar. 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 [“offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification],” held deportable where the offense in fact involved a minor constituted an aggravated felony sexual abuse of a minor offense for removal purposes under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)).

[88] Id.

[89] Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007).

[90] Id. at 114.

[91] Id. at 113.   See also Id. at 113 n.1 (citing Conteh, supra, and suggesting it could re-examine in the future whether the categorical analysis should be followed in the immigration context at all).

[92] 18 U.S.C. § § 2421, 2422(b), 2423.

[93] Id. at 114.  See also Id. at 114 n.4, noting that an element of “commercial advantage” was added to 18 U.S.C. § 2423(d) in 2003.

[94] INA § 101(a)(43)(K)(ii), 8 U.S.C. § 1101(a)(43)(K)(ii).

[95] Matter of Gertsenshteyn, 24 I. & N. Dec. at 112 (emphasis added).

[96] Id. at 116.

[97] See § 16.19, infra.

[98] Matter of Gertsenshteyn, 24 I. & N. Dec. at 115.

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - EXTRA ELEMENT ANALYSIS - DOMESTIC VIOLENCE CONVICTION GROUND OF DEPORTATION - DOMESTIC RELATIONSHIP - COURT CAN GO BEYOND THE ELEMENTS OF THE OFFENSE OF CONVICTION TO ESTABLISH THE DOMESTIC RELATIONSHIP
United States v. Hayes, ___ U.S. ___, 129 S.Ct. 1079 (Feb. 24, 2009) ("We hold that the domestic relationship, although it must be established beyond a reasonable doubt in a 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.").

CRIMES OF MORAL TURPITUDE " ANALYSIS
The Immigrant Legal Resource Center has published an analysis of Matter of Guevara Alfaro, 25 I. & N. Dec. 417 (BIA 2011) (California conviction of sexual intercourse with a minor (statutory rape), in violation of Penal Code 261.5(d), does not categorically constitute a crime involving moral turpitude): Because the Ninth Circuits earlier decision interpreting Californias sexual intercourse with a minor offense used the traditional categorical approach rather than the Silva-Trevio approach, the Board concluded that the earlier Ninth Circuit decision is not binding. Matter of Guevara Alfaro, 25 I&N Dec. at 421. Instead, the Board h[e]ld that the Attorney Generals substantive ruling in Silva-Trevino is binding in this case and must be applied in lieu of Quintero-Salazar to the extent that the two cases conflict. Matter of Guevara Alfaro, 25 I&N Dec. at 421 (citing Natl Cable & Telecomms. Assn v. Brand X Internet Servs., 545 U.S. 967, 980-82 (2005)). Despite refusing to follow the Ninth Circuits earlier decision, the Board reached the same result regarding the first prong of Silva-Trevio. The California statute, it noted, does not require a perpetrator to have engaged in intentional sexual contact with someone he or she knew or should have known to be a child. Matter of Guevara Alfaro, 25 I&N Dec. at 424. As such, the statute fails the categorical approach that, as announced in Silva-Trevio, counsels that an offense is not a CIMT if there is a realistic probability that non-morally turpitudinous conduct would be criminally prosecuted under that statute. Matter of Guevara Alfaro, 25 I&N Dec. at 424. In California, the Board concluded, there is a realistic probability it could be applied to conduct that does not involve moral turpitude. Matter of Guevara Alfaro, 25 I&N Dec. at 424. The Board then turned to Silva-Trevios second prong"the modified categorical approach in which the IJ can examine the record of conviction to determine whether moral turpitude is present. The BIA found that there are no documents in the record of conviction establishing that the respondent knew or should have known that his victim was a child. Matter of Guevara Alfaro, 25 I&N Dec. at 424. Lastly, turning to Silva-Trevios third prong"which I describe as the anything goes prong because it allows an IJ to consider what seems to be a limitless array of evidence beyond the statute or record of conviction"the Board noted that the noncitizen did not deny knowledge of his victims age. Matter of Guevara Alfaro, 25 I&N Dec. at 424. The IJ, however, did not make any findings regarding whether the noncitizen knew or should have known the victims age, therefore the Board remanded the case so that the IJ could make appropriate findings. Matter of Guevara Alfaro, 25 I&N Dec. at 424. The implication, of course, is that on remand this may prove to be a CIMT thanks to the anything goes prong. Thanks to Kathy Brady, Immigrant Legal Resource Center.

BIA

DOMESTIC VIOLENCE " VIOLATION OF PROTECTIVE ORDER " SIMILAR TO CIRCUMSTANCE SPECIFIC ANALYSIS
Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017) (in considering whether a violation of a domestic violence protection order renders a noncitizen deportable, under INA 237(a)(2)(E)(ii), an IJ should consider the probative and reliable evidence regarding what a state court has determined about the violation), clarifying Matter of Strydom, 25 I&N Dec. 507 (BIA 2011). NOTE: While the court stated that neither the categorical, nor the circumstance-specific approaches were applicable to this ground, the board stated that any reliable evidence could be submitted. The Board clarified that when it previously applied the categorical approach to INA 237(a)(2)(E)(ii), it did not actually hold that the categorical approach should be applied to the TRO ground, it just did it. Thus, the BIA was completely free to change its prior rule, because it did not really mean to establish that as the rule.

CRIMES OF MORAL TURPITUDE " NATURE OF CONVICTION " CATEGORICAL ANALYSIS
Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. Apr. 10, 2015) (immigration adjudicators are no longer allowed to go outside the record of conviction to determine whether a conviction constitutes a crime of moral turpitude), vacating 24 I & N Dec 687 (A.G. 2008). Note: The Attorney General pointed out that nothing in this decision is intended to affect BIA determinations that a conviction does or does not entail reprehensible conducted committed with some degree of scienter and is or is not a crime involving moral turpitude for that reason, which has been applied by the BIA in four decisions following Silva-Trevino, supra.

CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) (Chairez II) (Chairez Is interpretation of the divisibility standard used in the modified categorical analysis " adopting the Supreme Courts view in Descamps v. United States, 133 S. Ct. 2276 (2013), will only apply in circuits that have not explained how they understand divisibility after Descamps was decided; therefore, the test for when a statute is divisible will have to be litigated on a circuit-by-circuit basis); clarifying Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Chairez I) (a statute defining a criminal offense is divisible only if (1) it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of elements, more than one combination of which could support a conviction; and (2) at least one, but not all, of those listed offenses or combinations of disjunctive elements is a categorical match to the relevant generic standard; an element is facts that a jury has to find unanimously and beyond a reasonable doubt. And it distinguished alternate means to commit an offense, which do not require jury unanimity). NOTE: The BIA determined that since no deference is owed under Chevron to divisibility analysis, the Immigration Judge must follow the interpretation of Descamps applied within the Tenth Circuit under United States v. Trent, 767 F.3d 1046 (10th Cir. 2014): In Trent, the Tenth Circuit acknowledged that a statute is divisible under Descamps only if it is broken down into alternative elements or potential offense elements, but it concluded that the Descamps Court did not understand the term element to mean only those facts about a crime that must be proved to a jury unanimously and beyond a reasonable doubt. United States v. Trent, 767 F.3d at 105861. Instead, the Trent court concluded that a statute is divisible within the meaning of Descamps whenever it employs alternative statutory phrases. Id. at 106061 (citing Descamps v. United States, 133 S. Ct. at 2285 n.2). Matter of Chairez, 26 I&N Dec. at 482. The National Immigration Project of the National Lawyers Guild and the Immigration Defense Project published a practice advisory linked below that explains the decision detail, and suggests that the BIA is misreading Trent. http://nationalimmigrationproject.org/legalresources/practice_advisories/Chairez-Castrejon%20Advisory.pdf

CONTROLLED SUBSTANCES " DEPORTATION GROUND " SINGLE OFFENSE EXCEPTION " CIRCUMSTANCE-SPECIFIC INQUIRY
Matter of Davey, 26 I&N Dec. 37, 38-39 (BIA Oct. 23, 2012) (question whether a noncitizen committed a single offense involving a small quantity of marijuana, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), to qualify for this exception to the controlled substances deportation ground, was a circumstance-specific inquiry, that is, an inquiry into the nature of the aliens conduct. It does not suggest a focus on the formal elements of generic offenses.); citing Nijhawan v. Holder, 557 U.S. 29, 34 (2009).

CATEGORICAL ANALYSIS " STRICT CATEGORICAL ANALYSIS REAFFIRMED AFTER BIAS LANFERMAN DECISION
Campbell v. Holder, 698 F.3d 29, 33-34 (1st Cir. Oct. 19, 2012) (First Circuit acknowledged BIA decision not to follow strict categorical analysis in immigration cases, but held Supreme Court clearly required it anyway, even in sexual abuse of a minor case). The court stated: Although the BIA has said that the Taylor"Shepard approach need not be applied with the same rigor in the immigration context as in the criminal arena,In re Lanferman, 25 I. & N. Dec. 721, 727"28 (B.I.A. 2012), the Supreme Court's decision in Nijhawan v. Holder, 557 U.S. 29 (2009), requires the Taylor"Shepard analysis in INA cases"save where the matching INA offense is phrased so as to require a fact-specific determination rather than identification of a generic crime. [FN3] Further, certain offenses listed in INA 101(a)(43) must refer to generic crimes and one such offense is sexual abuse of a minor. Nijhawan, 557 U.S. at 37; accord Sanchez"Avalos v. Holder, No. 07"74437, """ F.3d """", 2012 U.S.App. LEXIS 18570, at *6 n. 1, 2012 WL 3799665, at *2 n. 1 (9th Cir. Sept. 4, 2012). FN3.Nijhawan reasoned that some subparagraphs of the aggravated felony definition in INA 101(a)(43) invite inquiry into the specific circumstances surrounding an offender's commission of a [certain crime] on a specific occasion, 557 U.S. at 40, e.g., a provision covering offenses that involve[ ] fraud or deceit in which the loss to the ... victims exceeds $10,000, INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) (emphasis added). But where the INA's aggravated felony listing refers to a generic crime"e.g., murder"the Taylor"Shepard inquiry is required. Nijhawan, 557 U.S. at 34, 37; accord Carachuri"Rosendo v. Holder, 130 S.Ct. 2577, 2586 n. 11 (2010). More recently the Supreme Court again stressed that (fact-specific provisions aside), the categorical approach operates similarly in the INA context as in the criminal context. In Kawashima v. Holder, 132 S.Ct. 1166 (2012), the Court said: To determine whether the Kawashimas' offenses involv[e] fraud or deceit within the meaning of [the INA aggravated felony statute], we employ a categorical approach by looking to the statute defining the crime of conviction, rather than to the specific facts underlying the crime. Id. at 1172. (Id. at 33-34.)

CONVICTION"NATURE OF CONVICTION"CATEGORICAL ANALYSIS"DIVISIBLE STATUTES"BROAD OR NARROW INTEPRETATION
Matter of Lanferman, 25 I. & N. Dec. 721 (BIA Mar. 9, 2012) (a criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief: [W]e have traditionally applied divisibility analysis to all manner of statutes, regardless of their structure. . Adopting the broadest approach[] is also consistent with the view we share with some courts of appeals that the categorical approach itself need not be applied with the same rigor in the immigration context as in the criminal arena, where it was developed.). Note: This decision essentially adopts the reasoning of United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc), nation-wide. In addition, it suggests that the categorical analysis in the immigration context is different from the categorical analysis in the criminal context, and thus the BIA gets Brand-X deference. These two aspects of the decision should be challenged wherever possible, as they fly in the face of many years of consistent application of the strict categorical analysis. For example, the BIA had previously held: We note that the statute under which the respondent was convicted is divisible, meaning it encompasses offenses that include as an element the use, attempted use, or threatened use of physical force against the person or property of another, as well as offenses that do not. Where a statute under which an alien was convicted is divisible, we look to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense of which the alien was convicted will sustain a ground of deportability under section 241(a) (2) (A) (iii) of the Act. This approach does not involve an inquiry into facts previously presented and tried. Instead the focus is on the elements required to sustain the conviction. (Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999). And, in another case: In accordance with this longstanding body of circuit precedent, we have from our earliest days espoused the same principle, resulting in an analytical approach that is essentially identical to the `categorical approach' adopted by the Supreme Court in both the sentencing and immigration contexts. (Matter of Velazquez Herrera, 24 I. & N. Dec. 503 (BIA May 20, 2008). The BIA in Lanferman did not explain or justify its changes in analysis from the categorical analysis consistently applied before. Thanks to Jonathan Moore.

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " CIRCUMSTANCE SPECIFIC FACTOR " DRUG TRAFFICKING " SMALL AMOUNT OF MARIJUANA
Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) (remanding case to IJ to allow respondent to present factual evidence that Virginia conviction of possession with the intent to give or distribute less than one-half ounce of marijuana, in violation of Va. Rev. Stat. 18.2-248.1(a)(1), involved only gratuitous distribution of a small amount of marijuana); following Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a misdemeanor); citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003). NOTE: The BIA relied upon Nijhawan v. Holder, 557 U.S. 29 (2009), to find the circumstance-specific approach is appropriate to determine whether a conviction of possession of marijuana with intent to distribute involved a small amount of marijuana and no remuneration. The BIA stated that the less than 30 grams of marijuana exception, may, in general, serve as a useful guidepost in determining whether an amount is small. Matter of Castro Rodriguez, 25 I&N Dec. at 703.

CATEGORICAL ANALYSIS - SILVA-TREVINO IMPOSES TRADITIONAL STEP ONE CATEGORICAL ANALYSIS WITH REASONABLE PROBABILITY ADDITION
Matter of Louissaint, 24 I. & N. Dec. 754 (BIA Mar. 18, 2009) (BIA interpreted Silva-Trevino to use the traditional categorical analysis in Step One, with the additional requirement that respondent show a reasonable probability that the statute would actually be used in a case falling outside the boundaries of the crime of moral turpitude definition, by showing at least one actual, rather than hypothetical, case in which this occurred).

DIVISIBLE STATUTE - EXTRA ELEMENT
Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007) (categorical approach to determining whether a criminal offense satisfies a particular ground of removal does not apply to the inquiry whether a violation of 18 U.S.C. 2422(a), interstate travel to engage in prostitution, was committed for "commercial advantage" and thus qualifies as an aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C. 1101(a)(43)(K)(ii) (2000), where "commercial advantage" is not an element of the offense and the evidence relating to that issue is not ordinarily likely to be found in the record of conviction). http://www.usdoj.gov/eoir/vll/intdec/vol24/3556.pdf

CRIMES OF MORAL TURPITUDE " EVIDENCE OUTSIDE RECORD OF CONVICTION ALLOWED ONLY WHERE CONVICTION RECORD ITSELF DOES NOT CONCLUSIVELY DEMONSTRATE WHETHER OR NOT THE CONVICTION WAS A CMT
Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465 (BIA 2011) (immigration court may consider evidence outside record of conviction in determining whether a conviction constitutes a crime involving moral turpitude only where the conviction record itself does not conclusively demonstrate whether the alien was convicted of engaging in conduct that constitutes a crime involving moral turpitude); clarifying Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).

DIVISIBLE STATUTE ANALYSIS - EXTRA ELEMENT
Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA Sept. 28, 2007) (IJ erred in failing to examine presentence report to determine whether noncitizen had been convicted of an aggravated felony fraud offense, with a loss of $10,000 or more; the loss to the victim requirement under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), is an "extra element" that may be determined (1) without application of the categorical or divisible statute analysis; and (2) by looking beyond the record of conviction to "any evidence admissible in removal proceedings bearing on the loss to the victim," including testimony in immigration court).

NOTE: This is an insupportable decision, building upon the BIAs analysis in Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007). It is extremely likely to be overturned or limited (if appealed), as the case arose in the Third Circuit, which, while allowing proof of a portion of a ground of deportation beyond the elements of the offense of conviction, requires that the extra element be found by examination of the record of conviction, and not beyond. See Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004); Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (cannot look to dismissed counts; limiting examination to the indictment, plea, verdict, sentence, and any explicit factual findings by the trial judge."), citing Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254 (2005). The BIA decision in fact cites the Third Circuit as already having made a holding contrary to the BIAs holding. Matter of Babaisakov, 24 I&N Dec. at 316.

Thus the BIA is blatantly ignoring the rule that the court must follow the law of the circuit in which the case arose. Matter of Anselmo, 20 I. & N. Dec. 25 (BIA 1989). While on the one hand suggesting that it is following Alaka (see, e.g., Babaisakov, n.8), the decision concludes with the following: "We leave for another day any questions that may arise with respect to circuit law that may be in tension with this decision, as we ordinarily follow circuit law in cases arising within a particular circuit and the grounds for any departure would need to be developed in the context of specific cases." Matter of Babaisakov, supra, 24 I. & N. Dec. at 322 (emphasis supplied). Apparently the BIA no longer feels it needs follow the law of the circuit courts.

The only basis on which this case might not be overruled is the fact that the criminal trial judge "affirmatively adopted" the PSR without change, thus arguably making the PSR an explicit factual finding by the trial judge, and so any discussion of abandoning the categorical analysis or allowing examination of any admissible evidence could be read as dictum. Only the First Circuit has suggested an analysis similar to that presented in this case. See Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006).

First Circuit

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MINIMUM CONDUCT " BURDEN
Sauceda v. Lynch, ___ F.3d ___ (1st Cir. Apr. 22, 2016) (a non-citizen can qualify for cancellation of removal without having to prove affirmatively that a conviction wasn't for a disqualifying conviction: "We hold that since all the Shepard documents have been produced and the modified categorical approach using such documents cannot identify the prong of the divisible Maine statute under which Peralta Sauceda was convicted, the unrebutted Moncrieffe presumption applies, and, as a matter of law, Peralta Sauceda was not convicted of a "crime of domestic violence."). NOTE: This case addresses the issue of who wins a divisible statute argument when the record of conviction is unclear which part of the statute the noncitizen was convicted under. The Ninth Circuit went back and forth on this issue for several years. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007); Young v. Holder, 697 F.3d 976, 988"90 (9th Cir.2012) (en banc). Ultimately, however, the Ninth Circuit left this question open following Moncrieffe. See Almanza Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016). This appears to be the first Circuit Court decision to definitively apply Moncrieffe to find that the categorical (and modified categorical) analysis is a question of law, and does not depend upon whether the Government or the Respondent bears the burden of proof.

CATEGORICAL ANALYSIS - FIRST CIRCUIT RULE
Magasouba v. Mukasey, 543 F.3d 13, 14 (1st Cir. Sept. 30, 2008) ("Whether petitioner's state-court conviction actually constitutes an aggravated felony, as defined in 8 U.S.C. 1101(a)(43), is a question of law over which this court has jurisdiction. See, e.g., Aguiar v. Gonzales, 438 F.3d 86, 88 (1st Cir.2006), cert. denied, __ U.S. __, 127 S.Ct. 1251, 167 L.Ed.2d 87 (2007). In conducting this inquiry, we employ a modified categorical approach, which focuses on the elements of the state conviction. Conteh v. Gonzales, 461 F.3d 45, 55 (1st Cir.2006), cert. denied, __ U.S. __, 127 S.Ct. 3003, 168 L.Ed.2d 732 (2007). When the statute of conviction necessarily involves all the elements of a 1101(a)(43) offense, proof of the fact of conviction suffices to discharge the government's burden. Id. at 56. But when the state provision is broader in scope, the government ... must demonstrate, by reference only to facts that can be mined from the record of conviction, that the putative predicate offense constitutes a crime designated as an aggravated felony. Id.")

Second Circuit

CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
Flores v. Holder, ___ F.3d ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (rejecting government argument that the agency is not bound to follow Descamps on the basis that the case arose in the sentencing context; the BIA is bound to apply divisibility consistently with the individual circuits' interpretation of divisibility under Descamps.); following In re Chairez"Castrejon, 26 I. & N. Dec. 349, 354 (BIA 2014); accord, Kaufmann v. Holder, 759 F.3d 6, 8"9 (1st Cir.2014); Aguilar"Turcios v. Holder, 740 F.3d 1294, 1301"02 (9th Cir.2014); Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1280 n. 3 (11th Cir.2013); Rojas v. Attorney Gen. of U.S., 728 F.3d 203, 216 n. 12 (3d Cir.2013) (en banc).

CATEGORICAL ANALYSIS - EXTRA ELEMENT
Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) (federal conviction of violating and conspiring to violate 18 U.S.C. 2422(a), enticing individuals to travel in interstate or foreign commerce to engage in prostitution, did not constitute an aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C. 1101(a)(43)(K)(ii) ("an offense that ... is described in section 2421, 2422 or 2423 of Title 18 ... if committed for commercial advantage"); BIA departed, with insufficient reason, from Second Circuit analysis long used to decide whether a noncitizen has been convicted of an aggravated felony; and it was unclear what result the BIA would reach under the proper framework).

Third Circuit

CATEGORICAL ANALYSIS - BURDEN OF PROOF - EXTRA ELEMENT
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) (rejecting argument that loss must be established beyond a reasonable doubt by criminal court: "we should not raise an aspect of an immigration statute to the level of an element of a criminal offense, as the dissent urges, merely because requiring that it be a part of the conviction eases a courts decision-making process.")

Fourth Circuit

CRIMES OF MORAL TURPITUDE " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " SILVA TREVINO
Prudencio v. Holder, 669 F.3d 472 (4th Cir. Jan. 30, 2012) (the Attorney Generals method to determine whether a conviction is a crime of moral turpitude, set forth in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), is not an authorized exercise of his discretion under Chevron).

RELIEF " CONVICTION BAR " CATEGORICAL APPROACH
Salem v. Holder, ___ F.3d ___, ___, 2011 WL 1998330 (4th Cir. May 24, 2011) (suggesting, but not deciding, that the issue of whether a conviction is an aggravated felony for purposes of cancellation of removal may be subject to categorical analysis: we are reluctant to extend application of the categorical approach to the immigration relief context given the uniqueness of the INA's burden-shifting regime.)

Fifth Circuit

CRIMES OF MORAL TURPITUDE " ANALYIS LIMITED TO TRADITIONAL CATEGORICAL ANLYSIS
Silva-Trevino v. Holder, 742 F.3d 197, 200 (5th Cir. Jan. 30, 2014) (immigration judge cannot consider extrinsic evidence to determine whether an alien was convicted of a crime involving moral turpitude: We have long held that, in making this determination, judges may consider only the inherent nature of the crime, as defined in the statute, or, in the case of divisible statutes, the alien's record of conviction. Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir.2006) (internal quotation marks and citations omitted); U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546, 548 (1952). We do not permit extrinsic inquiry into the circumstances surrounding the particular transgression. Amouzadeh, 467 F.3d at 455.); reversing Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 7, 2008). Note: The circuits are in conflict on this issue. Five circuits, now including the Fifth Circuit, agree that the immigration court must apply the categorical analysis to the question whether a conviction is a crime of moral turpitude, and may not go outside the record of conviction, except in the case of a divisible statute. Only the Seventh and Eighth Circuits disagree. As the court in Silva-Trevino summarized: The Third, Fourth, Ninth, and Eleventh Circuits found the language unambiguous and thus withheld deference. See generally Olivas"Motta v. Holder, 716 F.3d 1199 (9th Cir.2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir.2012); Fajardo v. U.S. Attorney General, 659 F.3d 1303 (11th Cir.2011); Jean"Louis v. Attorney General of U.S., 582 F.3d 462 (3d Cir.2009). The Seventh Circuit, however, has afforded the decision deference under Chevron, 467 U.S. 837, 104 S.Ct. 2778 (1984). See Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir.2008) ([A]s the board has done this through formal adjudication[,] the agency is entitled to the respect afforded by the Chevron doctrine.). The Eighth Circuit initially rejected the Silva"Trevino approach, but a later panel held that the opinion warrants deference. Compare Guardado"Garcia v. Holder, 615 F.3d 900, 902 (8th Cir.2010) (We are bound by our circuit's precedent, and to the extent Silva"Trevino is inconsistent, we adhere to circuit law.), with Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir.2012) (We conclude that the methodology is a reasonable interpretation of the statute and therefore must be given deference by a reviewing court.). Id. at 200 n.1.

CRIMES OF MORAL TURPITUDE " ANALYIS LIMITED TO TRADITIONAL CATEGORICAL ANLYSIS
Silva-Trevino v. Holder, 742 F.3d 197, 200 (5th Cir. Jan. 30, 2014) (immigration judge cannot consider extrinsic evidence to determine whether an alien was convicted of a crime involving moral turpitude: We have long held that, in making this determination, judges may consider only the inherent nature of the crime, as defined in the statute, or, in the case of divisible statutes, the alien's record of conviction. Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir.2006) (internal quotation marks and citations omitted); U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546, 548 (1952). We do not permit extrinsic inquiry into the circumstances surrounding the particular transgression. Amouzadeh, 467 F.3d at 455.); reversing Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 7, 2008). Note: The circuits are in conflict on this issue. Five circuits, now including the Fifth Circuit, agree that the immigration court must apply the categorical analysis to the question whether a conviction is a crime of moral turpitude, and may not go outside the record of conviction, except in the case of a divisible statute. Only the Seventh and Eighth Circuits disagree. As the court in Silva-Trevino summarized: The Third, Fourth, Ninth, and Eleventh Circuits found the language unambiguous and thus withheld deference. See generally Olivas"Motta v. Holder, 716 F.3d 1199 (9th Cir.2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir.2012); Fajardo v. U.S. Attorney General, 659 F.3d 1303 (11th Cir.2011); Jean"Louis v. Attorney General of U.S., 582 F.3d 462 (3d Cir.2009). The Seventh Circuit, however, has afforded the decision deference under Chevron, 467 U.S. 837, 104 S.Ct. 2778 (1984). See Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir.2008) ([A]s the board has done this through formal adjudication[,] the agency is entitled to the respect afforded by the Chevron doctrine.). The Eighth Circuit initially rejected the Silva"Trevino approach, but a later panel held that the opinion warrants deference. Compare Guardado"Garcia v. Holder, 615 F.3d 900, 902 (8th Cir.2010) (We are bound by our circuit's precedent, and to the extent Silva"Trevino is inconsistent, we adhere to circuit law.), with Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir.2012) (We conclude that the methodology is a reasonable interpretation of the statute and therefore must be given deference by a reviewing court.). Id. at 200 n.1.

CATEGORICAL ANALYSIS " CRIMES OF MORAL TURPITUDE " SILVA-TREVINO
Esparza-Rodriguez v. Holder, 699 F.3d 821, 825 n.8 (5th Cir. Oct. 18, 2012) (the third-step of Silva-Trevino, which looks to the underlying facts of the conviction and beyond the record of conviction, to be inconsistent with Fifth Circuit case law), citing Bianco v. Holder, 624 F.3d 265, 269 (5th Cir.2010).

Seventh Circuit

CRIMES OF MORAL TURPITUDE " FAILURE TO REGISTER AS A SEX OFFENDER " IJ ORDERED TO USE SILVA-TREVINO ANALYSIS
Mata-Guerrero v. Holder, 627 F.3d 256 (7th Cir. Nov. 24, 2010) (case remanded for the BIA to apply Matter of Silva-Trevino to determine whether petitioner's conviction for failure to register as a sex offender, under Wisconsin Statute 301.45(2)(a), was a crime of moral turpitude). NOTE: The court rejected the application of Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (2007) (willful failure to register as a sex offender is a CMT) because (1) the Wisconsin statute does not require willfulness; and (2) Matter of Tobar-Lobo applied the categorical analysis, which the court found was no longer applicable in light of Matter of Silva-Trevino.

NATURE OF OFFENSE - CATEGORICAL ANALYSIS - LIMITED TO ELEMENTS OF OFFENSE IN DETERMINING WHETHER CONVICTION IS AGGRAVATED FELONY CRIME OF VIOLENCE
LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. May 20, 2008) (per curiam) (rejecting DHS argument court should go beyond elements of offense of conviction to determine whether state conviction constituted aggravated felony crime of violence under INA 101(a)(43)(f), 8 U.S.C. 1101(a)(43)(F)).

DIVISIBLE STATUTE ANALYSIS - DIVISIBLE STATUTE - STATUTE CONSIDERED DIVISIBLE, WITH RESPECT TO AGE OF VICTIM, EVEN THOUGH STATUTE DID NOT REFER IN ANY WAY TO AGE OF VICTIM
Sharashidze v. Gonzales, ___ F.3d ___, 2007 WL 777666 (7th Cir. March 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 ["offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification]," constituted a divisible statute with respect to the age of the victim for purposes of considering whether conviction constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because the offense in fact involved a minor, thus rendering Sharashidze deportable under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)).

Eighth Circuit

CATEGORICAL ANALYSIS " SILVA-TREVINO
Villatoro v. Holder, ___ F.3d ___, 2014 WL 3704037 (8th Cir. Jul. 28, 2014) (court assumed Eighth Circuit had intra-circuit split concerning whether to reject Matter of Silva Trevino, 24 I. & N. Dec. 687 (AG Nov. 7, 2008), or to defer to it), compare Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. May 29, 2012) (deferring to Matter of Silva Trevino, with Guardado"Garcia v. Holder, 615 F.3d 900, 902 (8th Cir. 2010) (following prior Eighth Circuit law).

CRIMES OF MORAL TURPITUDE " SILVA TREVINO
Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. May 29, 2012) (finding full analysis of Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), including the factual analysis, to be a reasonable interpretation, and therefore due Chevron deference).

CATEGORICAL ANALYSIS - SILVA-TREVINO REJECTED
Guardado-Garcia v. Holder, 615 F.3d 900 (8th Cir. Aug. 4, 2010) ("We are bound by our circuit's precedent, and to the extent Silva-Trevino is inconsistent, we adhere to circuit law. See Jean-Louis v. Att'y Gen., 582 F.3d 462, 470-73 (3d Cir.2009) (concluding that "deference is not owed to Silva-Trevino's novel approach").").

Ninth Circuit

CONVICTION -- NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS " PLEA TO LESSER INCLUDED OFFENSE IDENTIFIED BY COUNT INCORPORATES MATTERS ALLEGED IN THE GREATER OFFENSE CHARGED IN THAT COUNT
Ruiz-Vidal v. Lynch, 803 F.3d 1049 (9th Cir. Oct. 9, 2015) (immigration court could look to originally charged count to identify controlled substance where noncitizen pleaded guilty to a lesser included offense; Ruiz"Vidal's plea"which references a specific count in the Information"and the Information, which references a specific controlled substance, provide clear and convincing evidence that Ruiz"Vidal was convicted of a removable offense.). NOTE: This case does not necessarily apply to all pleas to lesser included offenses. In making this holding, based on the concept of lesser included offense, the Court notes: [b]ecause possession of each different drug under California Health and Safety Code 11377(a) constitutes an entirely separate offense, Coronado, 759 F.3d at 985, the indictment charged him with the specific offense of sale of methamphetamine, not sale of a controlled substance. A conviction for possession of any other drug couldn't be a lesser included offense to sale of methamphetamine. The only way a conviction for possession of a controlled substance can be a lesser included offense to the crime of sale of methamphetamine is if the drug the defendant is convicted of possessing is methamphetamine. Hence, so long as there is clear and convincing evidence that Ruiz"Vidal's crime of conviction was a lesser included offense to Count 1, we can conclude he was convicted of possessing methamphetamine. The court distinguishes Cisneros"Perez v. Gonzales, 465 F.3d 386 (9th Cir.2006) (as amended), on the basis that the judgment record didn't establish that Cisneros"Perez necessarily pleaded no contest to the allegations in the original complaint because [i]t is not stated in any of the cognizable documents that the conviction for violating [the lesser included offense] stems from the same incident as the charges in the criminal complaint. Id. at 393 (emphasis added). Judge Reinhardt wrote a strong dissent.

PRACTICE ADVISORY " CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " RECORD OF CONVICTION " LESSER INCLUDED OFFENSES " CALIFORNIA
The Ninth Circuit held that because a lesser included charge must be one that is necessarily included in the charged offense, the lesser-included possession offense must have been possession of the same substance charged in the dismissed count charging the greater offense. In dissent, Judge Reinhardt argued the Ninth should stay out of messy questions about what is and is not a lesser-included offense: The complexity and uncertainty of that task is well illustrated here. Although Petitioner pled no contest to the lesser included offense to sale of a controlled substance, the offense to which he pled no contest " possession of a controlled substance " is not a lesser included offense to the crime charged " sale of a controlled substance " under at least one of the tests used by California courts. Under Californias elements test, possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell . . . because the former crime contains elements a sales offense does not: knowing possession of a usable quantity. People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316 (Cal. Ct. App. 1994); see also Judicial Council of California Criminal Jury Instructions, 1 CALCRIM No. 2300 (2015). Moreover, under that test the particular drug alleged in the information is not relevant to determining a lesser included offense. See People v. Sosa, 148 Cal. Rptr. 3d 826, 828"29 (Cal. Ct. App. 2012). Under the accusatory pleading test, the specific language of the accusatory pleading must include all of the elements of the lesser offense. People v. Moses, 50 Cal. Rptr. 2d 665, 668 (Cal. Ct. App. 1996). In this case, the first count in the accusatory pleading " the count to which Petitioner pled no contest to the lesser included offense " does not include any specific language concerning possession of methamphetamine; it merely repeats the language in the sale statute. There is an excess clause as to count one including the allegation that Petitioner possessed for sale/sold . . . methamphetamine, but that allegation could be satisfied by Petitioner selling methamphetamine without possessing it for sale. In short, rather than clear, unequivocal, and convincing evidence that Petitioner pled no contest to possession of methamphetamine, the record in this case reveals ambiguity and confusion regarding the meaning of Petitioners plea to a lesser included offense. Ruiz-Vidal v. Holder, ___ F.3d ___, ___ (9th Cir. 2015) (Reinhardt, J. dissenting). A petition for rehearing is in preparation.

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " LIMITATIONS
Aguilar-Turcios v. Holder, 691F.3d 1025 (9th Cir. Aug. 15, 2012) (military conviction of violating UCMJ Article 92, which prohibits violat[ing] or fail[ing] to obey any lawful general order or regulation, see 10 U.S.C. 892(1), did not amount to a violation of 18 U.S.C. 2252(a)(2) and (a)(4), under the modified categorical approach, because the facts on which the conviction necessarily rested do not satisfy the elements of either 18 U.S.C. 2252(a)(2) or (a)(4), and therefore do not constitute deportable child pornography aggravated felony convictions under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I)).

CATEGORICAL ANALYSIS " SCOTUS REVIEW OF AGUILA-MONTES DE OCA
United States v. Descamps, 466 Fed. Appx. 563 (9th Cir. 2012) (Supreme Court grant of certiorari is limited to the question whether, in a case under the Armed Career Criminal Act, when a state crime does not require an element of the federal crime of burglary, the federal court may find the existence of that element by examining the record of the state proceedings under the "modified categorical approach.). The issue presented is "Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir.2011) (en banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit courts of Appeal would not allow it."

CRIMES OF MORAL TURPITUDE " DEFINITION " SILVA-TREVINO
Saavedra-Figueroa v. Holder, 625 F.3d 621, 626 & n.4 (9th Cir. Nov. 5, 2010) (Ninth Circuit left open the question whether Matter of Silva-Trevino, 24 I. & N. Dec. 687 (AG 2008), applied retroactively to convictions occurring before it was decided).

NATURE OF CONVICTION - EXTRA-ELEMENT ANALYSIS
Kawashima v. Holder, 593 F.3d 979 (9th Cir. Jan. 27, 2010) (Nijhawan added a "third step" to the categorical analysis - determining whether the ground of removal depends only upon the "elements" of the crime, or any additional "circumstance specific" factors; if the requirement is "circumstance specific," the reviewing court must determine whether the BIA used "fundamentally fair procedures" in examining those factors to establish removability; examination of a plea agreement that contains a stipulated loss amount is "fundamentally fair.").

AGGRAVATED FELONY - ALIEN SMUGGLING
United States v. Guzman-Mata, 579 F.3d 1065 (9th Cir. Aug. 27, 2009) (federal conviction for violation of 8 U.S.C. 1324(a)(1)(A) is categorically an "alien smuggling" offense; noncitizen bears burden of showing that "family" exception applies; shift of burden is not impermissible).

NOTE: This case relies upon the reasoning of Nijhawan v. Holder, 557 U.S. __, 129 S.Ct. 2294 (2009).

Eleventh Circuit

CRIMES OF MORAL TURPITUDE " CATEGORICAL ANALYSIS " SILVA-TREVINO REJECTED
Sanchez Fajardo v. Atty Gen., 659 F.3d 1303 (11th Cir. Oct. 12, 2011) (rejecting the framework for determining whether a crime involves moral turpitude announced in Matter of Silva-Trevio, 24 I&N Dec. 687 (A.G. 2008)).

Other

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS MAY BE USED MORE OFTEN IN THE NINTH CIRCUIT
Some situations where Aguila-Montes may change prior law include: (1) Estrada-Espinoza consensual sex rules. California Penal Code 261.5(c) shouldn't change because there is only a 3-year age difference, but the result may change for other cases where the record of conviction shows a 4-year age difference between the victim who is under 16 and the perpetrator and there is knowing conduct. (2) Any sexual abuse offense which is age-neutral. Where the record of conviction shows that the victim is a minor would be an aggravated felony (e.g., California Penal Code 243.4(a) sexual battery) (3) Any age-neutral statute involving intentional abusive conduct or negligent abusive conduct used to avoid a crime of child abuse, where the record of conviction shows that the victim is a minor would be a deportable crime of child abuse. (4) Any firearm-neutral statute where a gun is involved would be a deportable firearms offense if, and but only if, it showed a violation of any law related to the elements of the firearm deportation ground. (5) Any crime of violence statute without a domestic element where a domestic element is shown is a deportable crime of domestic violence. (6) Any assaultive crime involving actual violent force where the record of conviction shows a domestic relation may now be considered crime of moral turpitude.

CATEGORICAL ANALYSIS - CRIME OF MORAL TURPITUDE
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (Moral turpitude is an "extra-element" allowing the courts to examine the underlying facts of the conviction in order to made a moral turpitude determination).

In short, the Attorney General has abandoned the categorical analysis in favor of a fact-based examination, rejecting Taylor, Shepard, and all prior categorical analysis case law in the CMT context. There is no longer any limit to the statute of conviction or minimum conduct. The IJ can look directly to the underlying facts whenever s/he feels it necessary to do so.

The categorical analysis survives only as an "evidentiary hierarchy," to ease the administrative burden of the immigration courts and the DHS. The new rule can be phrased as, "if at first its not a CMT, try, try again."

Step 1 (from Duenas-Alvarez, 549 U.S. 183 (2007)): Look at the statute, if the statute is categorically a CMT the conviction is a CMT. The Attorney General applies Duenas language regarding "reasonable probability of prosecution," as a requirement that the noncitizen prove that the statute of conviction is not categorically a CMT by pointing to the facts of his own case or a prior published decision. If there isnt a case out that punishes a non-CMT under the statute, then the conviction is categorically a CMT.

Step 2 (from Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006)): "Modified categorical approach" no longer means looking to determine the elements of conviction in case of a divisible statute. The term now means looking to any facts in the record of conviction to determine whether the offense was in fact a CMT.

Step 3 (from Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008)): The Attorney General sees no justification for being limited to the record of conviction. If it cannot be determined that the conviction was a CMT by looking to the facts in the record of conviction, the immigration authorities can look at any and all underlying facts and subsequent testimony if the immigration judge decides it is necessary to do so.

While the noncitizen cannot dispute any facts found by the judge/jury or elements necessary for conviction, the DHS not limited by the elements of conviction in any way.

The minimum conduct punishable under the Texas Statute at issue in Silva-Trevino included where a 20 year old consensually feeling the breast of a girl 1-day shy of 18 years old, though clothing, while (mistakenly) believing she was over 18 years old. The conviction record reflected only the basic language of the statute. Nevertheless, the Attorney General remanded the case back to the BIA to determine whether the actor, in fact, knew or had reason to believe that the victim was under the age of 18.

The Attorney General was explicit in stating his view that Brand-X allows this decision to overrule all prior inconsistent case law from the Circuit Courts.

See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments in opposition to this terrible decision. This decision abruptly changes nearly 100 years of CMT law, and should be attacked.

CRIMES OF MORAL TURPITUDE - DEPORTATION GROUND - CATEGORICAL ANALYSIS EXCEPTION OF SILVA-TREVINO DOES NOT APPLY HERE BECAUSE THE "ADMISSION" EXCEPTION IN THE CMT INADMISSIBILITY GROUND DOES NOT EXIST IN THE CMT DEPORTATION GROUND
Article: Argument Silva-Trevino Applies Only to Crime of Moral Turpitude Ground of Inadmissibility, Not to the Grounds of Deportability

On November 7, 2008, former Attorney General Mukasey decided Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. November 7, 2008), in which he modified the categorical analysis used to determine whether a given conviction constitutes a crime of moral turpitude (CMT) for purposes of inadmissibility under INA 212(a)(2)(A)(i), 8 U.S.C. 1182(a)(2)(A)(i). He reasoned that because the CMT ground of inadmissibility refers to whether the immigrant admitted commission of a CMT, Congress intended that factual question to be relevant.

The relevant provisions contemplate a finding that the particular alien did or did not commit a crime involving moral turpitude before immigration penalties are or are not applied. Section 212(a)(2)(A)(i)(I), the inadmissibility provision at issue in this case, refers to "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude." (Emphasis added.) Section 237's removability provisions similarly pertain only to "[a]ny alien who is convicted of a crime involving moral turpitude" under certain enumerated circumstances, one of which relates to the alien's date of admissiona fact that would not typically be reflected in a criminal record of conviction. Sections 237(a)(2)(A)(i)-(ii) of the Act. To impose evidentiary limitations with the result that immigration penalties under section 212(a) or section 237 apply to aliens whose crimes did not involve moral turpitude, or with the result that aliens whose crimes did involve moral turpitude escape those penalties, is in tension with the text of those sections.

(Matter of Silva-Trevino, 24 I. & N. Dec. 687, 699-700 (A.G. November 7, 2008).)

The reference to the CMT ground of inadmissibility is apt: that ground of removal does refer to the commission of an offense, or acts constituting an offense. Silva-Trevino was an inadmissibility case, not a deportation case under INA 237(a)(2), 8 U.S.C. 1227(a)(2). The reference to the CMT ground of deportation, however, is dictum. Moreover, the language of the CMT deportation grounds does not refer to the commission of a CMT, or of acts constituting a CMT. It does refer, as Silva-Trevino pointed out, to the date of admission, which would not typically be reflected in a criminal record of conviction. (Id. at 700.) Therefore, the reasoning of Silva-Trevino, and its holding, do not apply to the CMT grounds of deportation. This difference between the two statutes is a distinction sufficient to require a different holding in a deportation case, which is technically not governed by the holding of Silva-Trevino.

This reasoning has begun to be adopted by Immigration Judges. For example, in one case, the immigration judge reasoned as follows:

It is unclear whether the portions [of the] Attorney General's decision allowing a factual inquiry into the nature of the acts engaged in by Respondent applies where, as here, ICE holds the burden of proving a conviction for a CIMT under 237(a)(2)(A)(i). First, the decision in Silva-Trevino rests on a rationale dependent in part upon language contained only in section 212(a)(2)(A)(i)(I), related to "admission" of certain "acts". [Footnote 4.]

[Footnote 4] The Attorney General Finds the statutory language to be ambiguous as to whether a factual inquiry is appropriate, rather than a strictly categorical one, holding that the language "cuts both ways." He finds that the language requiring a conviction cuts in favor of a purely categorical approach, but that language such as "involving" (which appears in both 212(a)(2)(A)(i)(I) and 237(a)(2)(A)(i)) and language such as "admits" the "commission" of certain "acts" (which appears only in 212 cut in favor of a factual inquiry. Thus, the language in 237 may be said to be less ambiguous, or at least less favoring of a factual inquiry, than is that in 212. See Silva-Trevino, supra, at 693 and 699.

Therefore, counsel is free to argue, and Immigration Judges are free to decide, that Silva-Trevino applies only in cases charging CMT inadmissibility, but not in cases charging CMT deportability.

CATEGORICAL ANALYSIS YOUNG AND OCA " REVISED PRACTICE ADVISORY
http://www.ilrc.org/files/documents/ilrc-cat_approach_9th_cir_9.12_update.pdf