CATEGORICAL ANALYSIS " MINIMUM CONDUCT " REALISTIC PROBABILITY
AILA Amicus Brief on Controlled Substances Convictions http://www.aila.org/content/default.aspx?docid=50585 AILA amicus brief filed with the Supreme Court urging the Court to reject improper application of the realistic probability test in controlled substances context.

CONVICTION " NATURE OF CONVICTION -- CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " ELEMENTS VS. MEANS OF COMMITTING
United States v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th Cir. Aug. 26, 2013) (the inclusion in Maryland offense of causing abuse to a child, under Md. Code, art. 27, 35C, of a nonexclusive list of possible ways of satisfying the elements of the offense does not thereby become a divisible statute, where the list is not composed of elements of the offense). The court reasoned: The government insists, however, that 35C is divisible. As the government notes, 35C defines sexual abuse to include sexual offense in any degree. See Md.Code, art. 27, 35C (a)(6)(ii)(1) (Sexual abuse includes, but is not limited to ... [i]ncest, rape, or sexual offense in any degree ). In the government's view, the incorporation of these state-law sex crimes creates additional categories of child sexual abuse"for example, sexual abuse through the commission of rape or sexual abuse through the commission of a sexual offense. And because at least some of the incorporated offenses are categorically crimes of violence for purposes of U.S.S.G. 2L1.2, see Chacon, 533 F.3d at 258 (second-degree sexual offense under Maryland law constitutes a conviction for forcible sex offense), the government argues that the statute is divisible into crimes-of-violence categories and that the modified categorical approach was therefore properly applied. We disagree. As the Supreme Court emphasized in Descamps, the central feature of both the categorical approach and its helper, the modified categorical approach, is a focus on the elements, rather than the facts, of a crime. Descamps, 133 S.Ct. at 2285. The elements of the crime of sexual abuse of a child are those previously listed"an act involving sexual molestation or sexual exploitation of a minor, by a person with the requisite familial or custodial relationship to the minor. See Schmitt, 63 A.3d at 643. The crimes listed in 35C(6)(ii) are merely illustrative, Walker, 69 A.3d at 1084, 2013 WL 3456566, at *14, and they simply provide[ ] examples of acts that come within [the statutory] definition, Tribbitt, 943 A.2d at 1266. The crimes, therefore, are not elements of the offense, but serve only as a non-exhaustive list of various means by which the elements of sexual molestation or sexual exploitation can be committed.FN2 See Crispino v. State, 417 Md. 31, 7 A.3d 1092, 1102"03 (2010). And as alternative means rather than elements, the listed crimes are simply irrelevant to our inquiry. See Descamps, 133 S.Ct. at 2285 n. 2.

BIA

PRACTICE ADVISORY " CATEGORICAL APPROACH " REALISTIC PROBABILITY OF PROSECUTION
NIPNLGs and Immigrant Defense Projects latest advisory on Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), and the realistic probability test. This practice advisory assesses the current state of the federal court and agency case law on the realistic probability standard, and provides practice tips and litigation strategies for meeting this standard. The advisory is located at: http://www.nationalimmigrationproject.org/publications.htm

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) " SUPREME COURT DID NOT ALLOW COURT TO IGNORE ACTUAL CASES ON GROUND THEY ARE NOT TYPICAL OR DO NOT REPRESENT MAJORITY CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MINIMUM CONDUCT TEST " DUENAS ANALYSIS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (James and Duenas"Alvarez grants us no license to ignore actual cases on the ground that they are not typical or do not represent the majority of convictions.).

CATEGORICAL ANALYSIS - CONTROLLED SUBSTANCES - 30 GRAMS OF MARIJUANA EXCEPTIONS
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118 (BIA Nov. 4, 2009) (respondent may look to the specific facts of the underlying conviction to determine the amount of marijuana involved to prove, by a preponderance of the evidence, that the offense fits within the "less than 30 grams of marijuana" exception for purposes of a seeking a waiver under INA 212(h)), citing Nijhawan v. Holder, 129 S. Ct. 2294, 2298 (2009).

"We think it unlikely that Congress intended to make an aliens eligibility for a waiver dependent on such an arbitrary factor as whether the convicting jurisdiction treated drug quantity as an element. Furthermore, section 212(h) requires only that an applicants inadmissibility "relate[] to" its object of reference, namely, "a single offense of simple possession of 30 grams or less of marijuana." Given the narrow specificity of that object, it is hard to imagine any offenseapart from a few inchoate offensesthat could "relate to" it categorically without actually being a simple marijuana possession offense. Had Congress wished to make waivers available only to aliens who had committed simple marijuana possession, using a broad expression like "relates to" would have been an unlikely choice of words. Thus, we conclude that Congress envisioned something broader, specifically, a factual inquiry into whether an aliens criminal conduct bore such a close relationship to the simple possession of a minimal quantity of marijuana that it should be treated with the same degree of forbearance under the immigration laws as the simple possession offense itself."

CATEGORICAL ANALYSIS - REASONABLE PROBABILITY THE STATUTE WOULD BE APPLIED TO REACH CONDUCT THAT DOES NOT INVOLVE MORAL TURPITUDE
Matter of Louissaint, 24 I. & N. Dec. 754 (BIA Mar. 18, 2009) (categorical approach for determining if a particular crime involves moral turpitude set forth in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), requires the traditional categorical analysis, which was used by the United States Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and includes an inquiry into whether there is a "realistic probability" that the statute under which the alien was convicted would be applied to reach conduct that does not involve moral turpitude).

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).

CONVICTION - NATURE OF CONVICTION - CATEGORICAL ANALYSIS - BIA REAFFIRMS CATEGORICAL DETERMINATION OF THE NATURE OF DEPORTABLE CONVICTIONS UNLESS CONGRESS INVITED EXCEPTION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (BIA rejected DHS argument to go beyond elements of offense, and beyond record of conviction, to determine whether conviction constituted "crime of child abuse" under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), using reasoning applicable to all criminal grounds of deportation except those specifically excluded by earlier decisions), citing Matter of Babaisakov, 24 I. & N. Dec. 306, 311 (BIA 2007) (categorical approach does not apply to determining whether an offense caused a loss to victims of more than $10,000 within the meaning of INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)); Matter of Gertsenshteyn, 24 I. & N. Dec. 111, 112 (BIA 2007) (categorical approach does not apply to determining whether a violation of 18 U.S.C. 2422(a) was committed for "commercial advantage" within the meaning of INA 101(a)(43)(K)(ii), 8 U.S.C. (a)(43)(K)(ii)).

DOMESTIC VIOLENCE - DEPORTATION GROUND - CRIME OF CHILD ABUSE - CONGRESS DID NOT INVITE "EXTRA ELEMENT" EXCEPTION TO CATEGORICAL ANALYSIS LIMITATION TO ELEMENTS OF OFFENSE OR RECORD OF CONVICTION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("Yet there is nothing in the language of the "crime of child abuse" clause of section 237(a)(2)(E)(i) that invites inquiry into facts unrelated to an alien's "convicted conduct." Furthermore, there is no reason to believe that application of the categorical approach will render section 237(a)(2)(E)(i) so underinclusive as to defeat the purpose of the statute. Most States have criminal statutes that are designed to punish child abuse in its various forms, and many of these statutes protect children exclusively.").

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - BIA HAS NO AUTHORITY TO REJECT CATEGORICAL ANALYSIS OR CONSIDER POLICY ARGUMENTS EXCEPT IN INTERPRETING OTHERWISE AMBIGUOUS IMMIGRATION LEGISLATION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("The principal difficulty with the DHS's position [arguing for abandonment of categorical analysis] is that we simply have no authority to consider such policy matters except as they may bear on the proper interpretation of an otherwise ambiguous statute. Most importantly for present purposes, the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this proceeding arises, has found no such ambiguity and has held in a precedent decision that the "categorical approach is applicable to section 237(a)(2)(E)(i) in its entirety." Tokatly v. Ashcroft, 371 F.3d 613, 624 (9th Cir. 2004) (construing section 237(a)(2)(E)(i) of the Act as it applies to convictions for "crimes of domestic violence") (emphasis added).").

DIVISIBLE STATUTE ANALYSIS - REASONABLE PROBABILITY OF PROSECUTION
    Realistic Probability of Prosecution. Traditionally, if consultation of the record of conviction did not establish that the defendant was convicted of a charge that invariably involved moral turpitude, the conviction would be presumed not to involve moral turpitude where the government bore the burden of proof. However, the United States Supreme Court recently made a statement that might be interpreted to suggest the noncitizen must also show a realistic probability that the state in fact prosecutes defendants for offenses that factually would fall outside the ground of deportation, instead of merely imagining a set of facts that would arguably fall within the crime but outside the ground of deportation.

    As a result, immigration authorities may require the noncitizen to show a realistic probability of prosecution under the state statute for conduct that falls outside the ground of deportation. The Ninth Circuit is clearly right in holding that where non-deportable conduct falls within the plain language of the statute defining the criminal offense, no more proof is required. Judicial decisions of the state of conviction affirming convictions for conduct falling outside the ground of deportation would also clearly be sufficient. Unpublished decisions are equally probative of this point, since they reflect actual prosecutions for non-deportable conduct. Moreover, counsel can examine pattern jury instructions. If non-deportable conduct falls within them, it is very hard for the government to argue there is no realistic probability of prosecution, since every jury in every prosecution for violating that statute is instructed to convict, under the statute, for the non-deportable conduct. Counsel could also offer an affidavit of a state prosecutor or defense attorney as to the states practices.

    The paragraph giving rise to this issue arose in the aggravated felony context, where a specific aggravated felony category may be defined by a "generic" definition of the terms used, the Supreme Court stated:

Moreover, in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statutes language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

    In James v. United States, the Supreme Court further expanded on this point in the context of determining whether attempted burglary qualified as on offense posing a "serious potential risk" of physical injury for purposes of the Armed Career Criminal Act. Citing Duenas-Alvarez, the court announced:

We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. . . . Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury-for example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets, see United States v. Thomas, 361 F.3d 653, 659 (C.A.D.C.2004). Or, to take an example from the offenses specifically enumerated in 924(e)(2)(B)(ii), one could imagine an extortion scheme where an anonymous blackmailer threatens to release embarrassing personal information about the victim unless he is mailed regular payments. In both cases, the risk of physical injury to another approaches zero. But that does not mean that the offenses of attempted murder or extortion are categorically nonviolent.

Although counsel could argue that James applies in the context of determining whether a "risk" exists (as in 18 U.S.C. 16(b) crime of violence cases), a number of courts have already cited this language in connection with Duenas-Alverez as applied to other grounds of removal.

    Duenas-Alvarez and James could be said to be announcing two new tests - first allowing courts to look to the realistic probability that the state would apply the statute at issue to prosecute the conduct that falls outside the ground of deportation, as opposed to examining the minimum conduct punishable under the statute, and second, allowing the courts to ask only whether the ordinary and usual matter of commission of the offense would fall within a ground of removal, rather than requiring the court to examine the full range of conduct punished. This interpretation would alter the categorical analysis announced by Taylor, and reaffirmed by Shepard, without any discussion justifying such a wide-scale change in the law. In Duenas, however, the Supreme Court expressly reaffirmed and applied the normal categorical and modified categorical analysis, so this interpretation would not seem to be justified.

    The Fifth and Ninth Circuit have taken different approaches to applying these cases. The Fifth Circuit appears to take a very narrow view -- requiring the noncitizen or defendant provide either personal evidence (from his or her own case) or case law showing that the statute of conviction reaches conduct that falls outside the definition of the ground of deportation. In United States v. Ramos Sanchez, the court rejected the contention that an indecent solicitation statute at issue was overbroad because it could be used to prosecute a minor. Even though the statute at issue had been used to prosecute a 17-year-old for having sex with his 15-year-old girlfriend, the court found that case inapplicable, since the age of consent in Kansas was 16. The Fifth Circuit has also applied the James "ordinary and usual matter" test.

    On the other hand, the Ninth Circuit does not require the noncitizen to provide "specific examples" of a state prosecuting people "for acts that would fall outside the generic definition of crimes of moral turpitude." Rather the court stated that:

The issue is not whether in some cases violators of section 32 have been involved in a crime of moral turpitude. The issue is whether everyone prosecuted under that section has necessarily committed a crime involving moral turpitude. There is nothing inherent in the crime of accessory after the fact that makes it a crime involving moral turpitude in all cases.

Likewise, in finding that the California offense of leaving the scene of an accident resulting in bodily injury was not a crime of moral turpitude, the Ninth Circuit found that looking to the statutory language, "a driver in an accident resulting in injury who stops and provides identification, but fails to provide a vehicle registration number, has violated the statute." The court then rejected the DHSs argument that such an offense would not be prosecuted:

We cannot . . . ignore the plain language of 20001(a). Duenas-Alvarez does caution us against "conjur[ing] up some scenario, however improbable, whereby a defendant might be convicted under the statute in question even though he did not commit the act encompassed by the federal provision." United States v. Carson, 486 F.3d 618, 610 (9th Cir. 2007) (per curiam). But where, as here, the state statute plainly and specifically criminalizes conduct outside the scope of the federal definition, we do not engage in judicial prestidigitation by concluding that the statute "creates a crime outside the generic definition of a listed crime." Duenas-Alvarez, 127 S.Ct. at 822.

Other courts may also follow this analysis.

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - MINIMUM CONDUCT - REALISTIC PROBABILITY
The presumption of the official performance of duty may be of use in proving that there is a realistic probability of prosecution, where the plain language of the statute clearly covers non-deportable conduct. The police would presumably perform their duty if a defendant violates the plain terms of the statute. The prosecution would presumably perform its duty to prosecute under those circumstances. The Rule of Lenity would likewise perhaps be of assistance, giving the respondent the benefit of all reasonable doubts concerning the facts the government must prove to establish deportability.

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- ORDINARY OR TYPICAL CASE ANALYSIS REJECTED IN FAVOR OF MINIMUM CONDUCT TEST
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts convictions for breaking and entering (daytime or nighttime) with intent to commit a felony, M.G.L. ch. 266, 16, 18, and assault and battery with dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute crimes of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable under this statute did not create a substantial risk that the defendant would intentionally use physical force against person or property, since the minimum conduct included nonviolent entries of rarely-occupied structures through unlocked doors or windows, rejecting the governments argument that the court should look only to the typical case charged under the statute). NOTE. Possession of burglary tools should never be considered an aggravated felony, regardless of the sentence. To take the most conservative perspective, however, there is some risk that it could be considered an attempted theft offense. An attempted theft offense would become an aggravated felony if the client received a sentence of imprisonment of one year or more, suspended or imposed.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- ORDINARY OR TYPICAL CASE ANALYSIS REJECTED IN FAVOR OF MINIMUM CONDUCT TEST
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts convictions for breaking and entering (daytime or nighttime) with intent to commit a felony, M.G.L. ch. 266, 16, 18, and assault and battery with dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute crimes of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable under this statute did not create a substantial risk that the defendant would intentionally use physical force against person or property, since the minimum conduct included nonviolent entries of rarely-occupied structures through unlocked doors or windows, rejecting the governments argument that the court should look only to the typical case charged under the statute). NOTE. Possession of burglary tools should never be considered an aggravated felony, regardless of the sentence. To take the most conservative perspective, however, there is some risk that it could be considered an attempted theft offense. An attempted theft offense would become an aggravated felony if the client received a sentence of imprisonment of one year or more, suspended or imposed.

Second Circuit

CATEGORICAL ANALYSIS - MINIMUM CONDUCT
Martinez v. Mukasey, 551 F.3d 113 (2d Cir. Dec. 18, 2008) ("The very basis of the categorical approach is that the sole ground for determining whether an immigrant was convicted of an aggravated felony is the minimum criminal conduct necessary to sustain a conviction under a given statute. Dalton, 257 F.3d at 204. This does not require Martinez to prove how little marihuana he had or the nature of the transfer, so long as his conviction could have been based on a nonremunerative transfer of a small amount of marihuana. Placing the burden on Martinez, instead, necessarily requires looking into evidence of Martinez's actual conduct, evidence that may never have been seen by the initial convicting court. It was the desire to avoid such particular inquiries-whether designed to show that a specific defendant was less or more culpable than what his actual conviction required-that led us and the Supreme Court to focus on categorical analysis." (emphasis in original)).

NATURE OF A CONVICTION - DIVISIBLE STATUTE - MINIMUM CONDUCT
Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) ("However improbable, Wala could have been taking the jewelry with the intent to loan it to his girlfriend for one "night on the town" and then return it. Or, he could have been taking the credit cards with the intent to use them for a one-time identification purpose. The point is that either would have been sufficient to sustain Wala's guilty plea and conviction under Connecticut penal law. Thus, although it may have been reasonable for the BIA to infer that Wala intended permanently to keep the items he admitted taking, the modified categorical approach does not permit the BIA to draw inferences of this kind.").

Third Circuit

CRIMES OF MORAL TURPITUDE - MINIMUM CONDUCT ANLAYSIS - "REALISTIC PROBABILITY" TEST REJECTED
Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. Oct. 6, 2009) ("We have applied this . . . approach in order to determine the least culpable conduct sufficient for a conviction, and, where a CIMT is asserted, measure that conduct for depravity;" court rejected application of Duenas-Alvarez "realistic probability" test in the CMT context, as applying this test would disrupt predictability, and result in an impermissible switch of the burden of proof).

NATURE OF CONVICTION -- MINIMUM CONDUCT
Jeune v. Attorney General, 476 F.3d 199, 2007 WL 512510 (3d Cir. Feb. 20, 2007) ("Moreover, this Court has indicated that we must assume that Jeune's conduct was only the minimum necessary to comport with the statute and record. Partyka v. Att'y Gen. of U.S., 417 F.3d 408, 411 (3d Cir.2005) ("Under this categorical approach, we read the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute."); Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003) ("Because the state statute under which Wilson pled guilty does not contain sale for remuneration as an element, we cannot determine from the state court judgment that Wilson's conviction necessarily entails a finding of remuneration."); Steele v. Blackman, 236 F.3d 130, 136 (3d Cir.2001) (limiting the inquiry to what the state court must necessarily have found). To conform with these precedents, we must conclude that Jeune's conduct was the bare minimum necessary to trigger 35 PA. CONS.STAT. ANN. 780-113(a)(30) and therefore does not constitute an aggravated felony.").

Fourth Circuit

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " MINIMUM CONDUCT ANALYSIS
United States v. Gomez, 690 F.3d 194 (4th Cir. Aug. 10, 2012) (for non-common law offenses, the modified categorical approach applies only when the statute defines more than one crime, so an admission at plea that the defendant used force in committing the offense is irrelevant where the statute of conviction covers only one generic crime that does not have force as an element).

Fifth Circuit

CATEGORICAL ANALYSIS " MINIMUM CONDUCT " REASONABLE PROBABILITY OF PROSECUTION
United States v. Carrasco-Tercero, ___ F.3d ___, 2014 WL 983180 (5th Cir. Mar. 13, 2014) (showing the statute explicitly covers conduct that falls outside a generic removal ground is not necessarily sufficient to establish that there is a reasonable probability of prosecution, where the overbroad conduct is anachronistic and not prosecuted today).

AGGRAVATED FELONY - CRIME OF VIOLENCE - UNLAWFUL WOUNDING
Singh v. Holder, 568 F.3d 525 (5th Cir. May 14, 2009) (Virginia conviction of unlawful wounding, under Virginia Code 18.2-51 ["maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill"] is an aggravated felony crime of violence under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for purposes of barring naturalization under INA 101(f)(8), 8 U.S.C. 1101(f)(8)).

NOTE: the Fifth Circuit here found the conviction was a "crime of violence" because the petitioner did not suggest any ways in which the offense would not be a crime of violence, failing to meet the requirements of Duenas and James.

CATEGORICAL ANALYSIS - REALISTIC PROBABILITY OF PROSECUTION
United States v. Ortiz-Gomez, ___ F.3d ___, ___, 2009 WL 604133 (5th Cir. Mar. 10, 2009) (finding, on the basis of common sense, a realistic probability that a threat to commit arson against property, even if no person was present, would be prosecuted as making a terroristic threat, in violation of 18 Pennsylvania Consolidated Statutes 2706(a)(1) [communicating a threat to "commit any crime of violence with intent to terrorize another"]).

CONVICTIONNATURE OF CONVICTION - CATEGORICAL ANALYSIS - REALISTIC PROBABILITY
United States v. Moreno-Florean, 542 F.3d 445, 456 (5th Cir. Sept. 8, 2008) ("Based on the California Supreme Court's statement in Martinez, there is a 'realistic probability' that California 'would apply [ 207(a)] to conduct that falls outside the generic definition' of kidnapping. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007); see also United States v. Ramos-Sanchez, 483 F.3d 400, 403-04 (5th Cir. 2007). A 'contextual factor,' which is part of a "totality of the circumstances" test and is not necessarily considered by the jury, is not the equivalent of an element for purposes of our enumerated offense analysis. Because the least culpable act constituting a violation of 207(a) only requires proof of two elements discussed in Gonzalez-Ramirez, we conclude that 207(a) sweeps more broadly than the generic, contemporary meaning of 'kidnapping.'").

CATEGORICAL ANALYSIS - "COMMON SENSE APPROACH"
United States v. Carbajal-Diaz, 508 F.3d 804 (5th Cir. Nov. 26, 2007) (drawing a distinction between the "categorical analysis" applied when determining whether a conviction requires "use of force" for first prong of illegal re-entry sentencing definition of "crime of violence" and the "common sense approach" applied when examining whether an offense falls within one of the offenses enumerated in the second prong.)

CATEGORICAL ANALYSIS - APPLYING "ORDINARY AND USUAL MANNER" TEST
Perez-Munoz v. Keisler, 507 F.3d 357 (5th Cir. Nov. 6, 2007) ("Although it may be possible to commit this offense by an intentional act without the use of physical force (such as by placing poison in a childs food or drink), this is not the ordinary, usual way the crime is committed. The crime, when committed by an act, is usually committed with the use of some force, or at least through conduct that presents the substantial risk that force may be used. The BIA correctly found that Perez had been convicted of an aggravated felony."), following James v. United States, __ U.S. __, 127 S.Ct. at 1586, 1597 (2007).

NATURE OF A CONVICTION - MINIMUM CONDUCT - DUENAS
United States v. Balderas-Rubio, 499 F.3d 470 (5th Cir. Sept. 5, 2007) (although violation of Okla. Stat. tit. 21, 1123, making it unlawful to "to intentionally look upon, touch, maul, or feel the body or private parts of any child under sixteen (16) years of age in any lewd or lascivious manner ...." could include the act of viewing a child in a lewd manner from a significant distance (using binoculars), and without the knowledge of the child, the defendant "failed to show a realistic probability that [Oklahoma] would in fact punish conduct of the type he describes."; offense therefore is considered "sexual abuse of a minor" for illegal re-entry sentencing purposes), citing United States v. Ramos-Sanchez, 483 F.3d 400, 404 (5th Cir.2007); Gonzales v. Duenas-Alvarez, __ U.S. __, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007).

Eighth Circuit

CATEGORICAL ANALYSIS " REALISTIC PROBABILITY REQUIREMENT
Mowlana v. Lynch, ___ F.3d ___, 2015 WL 5730791 (8th Cir. Sept. 30, 2015) (in determining whether a federal conviction categorically qualifies as a ground of removal, the realistic probability inquiry applies just as when analyzing a state-law offense); following Bobadilla v. Holder, 679 F.3d 1052, 1055"57 (8th Cir.2012); see Rios"Diaz v. Holder, 543 F. App'x 617, 618 (8th Cir.2013); see also Sampathkumar v. Holder, 573 F. App'x 55, 57 (2d Cir.2014); Familia Rosario v. Holder, 655 F.3d 739, 749 (7th Cir. 2011); Accardo v. U.S. Att'y Gen., 634 F.3d 1333, 1337 (11th Cir.2011).

Ninth Circuit

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " REALISTIC PROBABILITY OF PROSECUTION
United States v. Burgos-Ortega, ___ F.3d ___, 2015 WL 468186 (9th Cir. Feb. 5, 2015) (Washington conviction for delivery of heroin, in violation of Revised Code of Washington 69.50.401(a)(1)(i) [manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.], was categorically a felony drug trafficking offense for illegal reentry sentencing purposes, rejecting an argument that conduct that falls under deliver in the state statute is broader than distribute in 21 U.S.C. 841(a)(11) [distribute means to deliver (other than by administering or dispensing) a controlled substance . . . .]; the state statute is silent as to the existence of a administering exception and the defendant was unable to show a realistic probability of prosecution for administering or dispensing). NOTE: The court distinguished United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc), and United States v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc), on the basis that the state statute here does not expressly include conduct not covered by the generic offense, but rather is silent as to the existence of a parallel administering exception.

CATEGORICAL ANALYSIS " REALISTIC PROBABILITY TEST " EXCEPTION
Cortez-Guillen v. Holder, 623 F.3d 933 (9th Cir. Oct. 5, 2010) (Although the Supreme Court has explained that there must be a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime, Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), we cannot ... ignore the plain language of [the statute of conviction]. Cerezo, 512 F.3d at 1167. [W]here, as here, the state statute plainly and specifically criminalizes conduct outside the contours of the federal definition, we do not engage in judicial prestidigitation by concluding that the statute creates a crime outside the generic definition of a listed crime.).

NATURE OF CONVICTION - MINIMUM CONDUCT ANLAYSIS - "REALISTIC PROBABILITY
Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) ("In making this determination, we must find a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of moral turpitude. . . . This realistic probability can be established by showing that, in at least one other case, the state courts in fact did apply the statute in the special (nongeneric) manner . . . . . . . The dissent would be more "generous" to the government and would impose a higher burden on the petitioner to show that the state in fact applies its law to conduct that falls outside the generic definition of moral turpitude. Id. We do not believe that such generosity is appropriate.").

NATURE OF CONVICTION - MINIMUM CONDUCT ANLAYSIS - "REALISTIC PROBABILITY"
Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) ("In making this determination, we must find a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of moral turpitude. . . . This realistic probability can be established by showing that, in at least one other case, the state courts in fact did apply the statute in the special (nongeneric) manner . . . . . . . The dissent would be more "generous" to the government and would impose a higher burden on the petitioner to show that the state in fact applies its law to conduct that falls outside the generic definition of moral turpitude. Id. We do not believe that such generosity is appropriate.").

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - REALISTIC PROBABILITY REQUIREMENT
Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. Sept. 17, 2009) (California conviction for receipt of stolen property under Penal Code 496(a) is not categorically a crime of moral turpitude because it does not require an intent to permanently deprive the owner of property, and respondent has identified published and unpublished decisions in which California state courts have upheld convictions under this statute in the context of joyriding, where there was indisputably no intent to deprive the owner permanently of the property).

NATURE OF CONVICTION - MINIMUM CONDUCT - REASONABLE PROBABILITY OF PROSECUTION
United States v. Becerril-Lopez, 528 F.3d 1133 (9th Cir. Jun. 12, 2008) (to show conviction does not fall within ground of removal, noncitizen must show reasonable probability that the state would apply its statute to conduct outside the generic definition, which in the Ninth Circuit can be done by showing that the text of the state statute expressly includes a broader range of conduct than the Guideline: "In Duenas-Alvarez, the defendant's argument relied not on the express text of the statute at issue, but on how state courts might conceivably apply it. The Supreme Court held that to prevail, the defendant had to show either that the statute was applied this way in his own case, or "point to ... other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues." Duenas-Alvarez, 127 S.Ct. at 822), citing United States v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc); United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc)).

NATURE OF THE OFFENSE - CATEGORICAL ANALYSIS - MINIMUM CONDUCT - REASONABLE PROBABILITY THAT STATE WOULD APPLY OFFENSE OUTSIDE THE BOUNDARIES OF THE GROUND OF DEPORTATION
Ortiz-Magana v. Mukasey, 523 F.3d 1042 (9th Cir. Apr. 28, 2008) (noncitizen failed to establish a reasonable probability that the state would apply the statute of conviction outside the definition of the ground of deportation in the aiding and abetting an assault with a deadly weapon, aggravated felony crime of violence context, since he presented no evidence that California has applied aiding and abetting assault outside the generic definition of a crime of violence).

NATURE OF THE OFFENSE - CATEGORICAL ANALYSIS - MINIMUM CONDUCT - REASONABLE PROBABILITY THAT STATE WOULD APPLY OFFENSE OUTSIDE THE BOUNDARIES OF THE GROUND OF DEPORTATION
Ortiz-Magana v. Mukasey, 523 F.3d 1042 (9th Cir. Apr. 28, 2008) (noncitizen failed to establish a reasonable probability that the state would apply the statute of conviction outside the definition of the ground of deportation in the aiding and abetting an assault with a deadly weapon, aggravated felony crime of violence context, since he presented no evidence that California has applied aiding and abetting assault outside the generic definition of a crime of violence).

CRIMES OF MORAL TURPITUDE - SEX OFFENSES - ANNOYING OR MOLESTING A CHILD
Nicanor-Romero v. Mukasey, 523 F.3d 992 (9th Cir. Apr. 24, 2008) (California misdemeanor conviction of annoying or molesting a child, in violation of Penal Code 647.6(b) ["annoys or molests any child under the age of 18"], did not constitute a crime of moral turpitude under the categorical approach, or under the modified categorical approach: "After examining the elements of 47.6(a), as set forth in the statute and as construed by California courts, we conclude that there is a "realistic probability, not a theoretical possibility," that a misdemeanor conviction under 647.6(a) can be based on behavior that, while criminal, does not rise to the level of a "crime involving moral turpitude" within the meaning of 8 U.S.C. 1227(a) (2)(A)(i)(I). ... We conclude that the government has failed to show that Nicanor-Romero committed either an aggravated felony or a crime involving moral turpitude. We therefore grant the petition and vacate the order of removal.").

CONVICTIONNATURE OF CONVICTION - CATEGORICAL ANALYSIS - REALISTIC PROBABILITY
United States v. Jennings, 515 F.3d 980 (9th Cir. Feb. 4, 2008) ("Wash. Rev.Code 46.61.024 explicitly encompasses conduct that does not present a potential risk of harm to others, namely conduct that only "indicat[es] a wanton or wilful disregard for the ... property of others." The statute is therefore expressly broader than the generic definition of a violent felony, and does not, under our case law, come within the class of statutes covered by Duenas-Alvarez and James. See Grisel, 488 F.3d at 850 ("Where ... a state statute explicitly defines a crime more broadly than the generic definition, no 'legal imagination' is required to hold that a realistic probability exists that will apply its statute to conduct that falls outside the generic definition of the crime. The state statute's greater breadth is evident from its text.") (quoting Duenas-Alvarez, 127 S.Ct. at 822); Vidal, 504 F.3d at 1082 ("[W]hen '[t]he state statute's greater breadth is evident from its text,' a defendant may rely on the statutory language to establish the statute as overly inclusive.") (quoting Grisel, 488 F.3d at 850).

DIVISIBLE STATUTE ANALYSIS - REASONABLE CHANCE OF PROSECUTION - UNPUBLISHED STATE DECISIONS
Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. Jan. 23, 2008) (court of appeals cites unpublished California decisions to show that forgery is in fact prosecuted on the basis of genuine documents falling within the statutory definition of the state offense); see Gonzales v. Duenas-Alvarez, ___ U.S. ___, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007); cf. United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc) (noncitizen need not meet Duenas realistic probability of prosecution test for crimes where "a state statute explicitly defines a crime more broadly than the generic definition").

CATEGORICAL ANALYSIS - MINIMUM CONDUCT - ORDINARY CASE - PUBLISHED STATE DECISIONS CRIMINALIZING CONDUCT THAT FALLS WITHIN STATUTE OF CONVICTION BUT OUTSIDE GROUND OF REMOVAL
Rebilas v. Keisler, 506 F.3d 1161, ___1163 (9th Cir. Nov. 2, 2007) ("Under the Taylor categorical approach, this court must look to "the ordinary case" that is prosecuted by the state, not some extreme hypothetical. James v. United States, --- U.S. ----, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007). Here, there was no evidence submitted, nor cases cited, about what types of conduct are ordinarily prosecuted under ARS 13-1403(B). See Gonzales v. Duenas-Alvarez, --- U.S. ----, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007) (explaining that an offender "must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.")." Therefore, court of appeal examined Arizona appellate decisions to determine what the ordinary case was).

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - LIMITS ON DUENAS "REALISTIC PROBABILITY OF PROSECUTION" TEST.
United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc) ("Where, as here, a state statute explicitly defines a crime more broadly than the generic definition, no "legal imagination," Duenas-Alvarez, 127 S.Ct. at 822, is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime."); United States v. Vidal, __ F.3d __, 2007 WL 2937015 (9th Cir. Oct. 10, 2007) (same). See also Estrada-Espinoza v. Gonzales, 498 F.3d 933 (9th Cir. 2007) (listing unpublished California cases as evidence that statutory rape is prosecuted in the case of 17-year-old victims).

Eleventh Circuit

AGGRAVATED FELONY " CATEGORICAL ANALYSIS " REALISTIC PROBABILITY " THIS NEED NOT BE SHOWN WHERE STATUTORY LANGUAGE ITSELF EXPLICITLY INCLUDES CONDUCT BEYOND REMOVAL GROUND
Ramos v. U.S. Attorney General, 709 F.3d 1066 (11th Cir. Feb. 19, 2013) (Here, the Government argues that, under Duenas"Alvarez, Ramos must show that Georgia would use the Georgia statute to prosecute conduct falling outside the generic definition of theft; if he cannot, the Government argues, the statute cannot be considered divisible. But Duenas"Alvarez does not require this showing when the statutory language itself, rather than the application of legal imagination to that language, creates the realistic probability that a state would apply the statute to conduct beyond the generic definition. Here, the statute expressly requires alternate intents. Accord Coker, 410 S.E.2d at 27. One of those intents (the one at issue here) does not render the crime a theft offense. The statute's language therefore creates the realistic probability that it will punish crimes that do qualify as theft offenses and crimes that do not. Duenas"Alvarez does not control this case.).

AGGRAVATED FELONY " CATEGORICAL ANALYSIS " REALISTIC PROBABILITY " THIS NEED NOT BE SHOWN WHERE STATUTORY LANGUAGE ITSELF EXPLICITLY INCLUDES CONDUCT BEYOND REMOVAL GROUND
Ramos v. U.S. Attorney General, ___ F.3d ___, ___, 2013 WL 599552 (11th Cir. Feb. 19, 2013) (Here, the Government argues that, under Duenas"Alvarez, Ramos must show that Georgia would use the Georgia statute to prosecute conduct falling outside the generic definition of theft; if he cannot, the Government argues, the statute cannot be considered divisible. But Duenas"Alvarez does not require this showing when the statutory language itself, rather than the application of legal imagination to that language, creates the realistic probability that a state would apply the statute to conduct beyond the generic definition. Here, the statute expressly requires alternate intents. Accord Coker, 410 S.E.2d at 27. One of those intents (the one at issue here) does not render the crime a theft offense. The statute's language therefore creates the realistic probability that it will punish crimes that do qualify as theft offenses and crimes that do not. Duenas"Alvarez does not control this case.).

Other

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " APPLICATION OF DESCAMPS
Matter of Chairez and Sama, 26 I. & N. Dec. 686 (A.G. 2015) (referred to Atty Gen. for review of issues relating to the application of Descamps v. United States, 133 S. Ct. 2276 (2013); ordering cases stayed and not regarded as precedential during pendency of review).

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTES " REALISTIC PROBABILITY STANDARD " BURDEN OF PROOF
The Immigrant Defense Projects and NIP-NLGs latest advisory is on Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014), in which the Board applied Moncrieffe and Descamps and withdrew from Matter of Lanferman. The advisory describes the holding of the case and its impact on the (1) minimum conduct test; (2) divisibility; (3) realistic probability standard; and (4) relief eligibility burden of proof. The advisory is located at: http://www.nationalimmigrationproject.org/publications.htm

CATEGORICAL ANALYSIS " CRIME OF MORAL TURPITUDE " SILVA-TREVINO
AILA Files Brief of Amici Curiae in Case Challenging Silva-Trevino http://www.aila.org/content/default.aspx?docid=35283 Brief of amici filed in the 4th Circuit case, Waheed v. Holder, urges the court to reject the Silva-Trevino framework for determining whether a conviction constitutes a crime involving moral turpitude and reaffirm the importance of the categorical approach. AILA Doc. No. 11050331.

CRIMES OF MORAL TURPITUDE - NATURE OF CONVICTION - ARGUMENT AGAINST GOING OUTSIDE THE RECORD OF CONVICTION - SILVA-TREVINO
Immigration counsel can argue that Matter of Silva-Trevino was wrongly decided, because Congress did not intend to permit the decisionmaker to go outside the criminal court record of conviction to determine whether a conviction constitutes a crime involving moral turpitude. INA 237(a)(7) provides that the Attorney General may waive deportability for a crime of domestic violence, under INA 237(a)(2)(E)(i), if the noncitizen establishes that s/he has been battered himself or herself, was not the primary perpetrator of violence in the relationship, and other facts. This statute also provides that the Attorney General "is not limited by the criminal court record," INA 237(a)(7)(A), and may consider any credible evidence in evaluating the waiver. INA 237(a)(7)(B). Congress clearly knew how to provide that the Attorney General could go beyond the record of conviction, since it did so in this domestic violence context. The fact that the INA makes no such provision respecting crimes of moral turpitude suggests Congress did not mean to make crimes of moral turpitude another exception to the record of conviction limitation. If the government was not generally limited to the criminal court record in determining the nature of a conviction for immigration purposes, there would have been no need for Congress to create an exception for battered spouses who themselves have been convicted of a crime of domestic violence.

Thanks to Lee A. O'Connor.