Criminal Defense of Immigrants


§ 16.9 IV. Divisible Statutes

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While the courts are initially allowed to examine only the elements of the offense as listed in the statute and as modified by judicial decisions, without regard to any other information,[154] an additional analysis is employed where the statute of conviction is “divisible.”  A statute is “divisible” when it contains several different offenses, i.e., different sets of elements under any of which a conviction may be sustained.[155]  If a conviction under one set of elements would, in all cases, fall within a ground of removability, but a conviction under a separate set of elements would not, the court is allowed to look to the “record of conviction” to determine which set of elements formed the basis of the defendant’s conviction.[156] 


This analysis was clearly described by the United States Supreme Court in Taylor v. United States.[157]  It provided that a reviewing court making a categorical analysis can look beyond the statute to certain documents contained in the record of conviction of the case at issue, if necessary to determine the actual elements of the offense of which the defendant was in fact convicted.[158]  The court held that in order to see whether a person convicted under a broadly defined Missouri burglary statute was convicted of each of the elements of the more narrowly defined “generic burglary,” as used in the career criminal sentencing statutes, courts could make a limited review of the record of conviction to determine whether “the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.”[159]  As with straight categorical analysis, the divisible statute analysis is applied in a number of contexts, including criminal sentencing[160] and immigration cases.


If a statute is divisible, the court can look beyond the statute, to the record of conviction, to determine the part of the statute of which the noncitizen was convicted.[161]  Because a categorical analysis is employed, the court is limited to the “record of conviction,” which is specifically defined and discussed in detail below.  See § § 16.15-16.33, infra.  The court is still precluded from resort to the underlying facts of the case to determine whether the offense itself would trigger removal.


                The BIA provides an example of classic “divisible statute” analysis:


Crimes involving fraud are also generally considered crimes involving moral turpitude. As noted above, the element of fraud, deceit, or trickery is not essential to a conviction for currency structuring under § 5324.  No doubt, some structuring offenses under § 5324 involve deliberate attempts to deprive the Government of information which would otherwise have been valuable in combating criminal activity.  However, the statute encompasses convictions for benign nonreporting which would not impair Government functions, as well as convictions which involve the deliberate cover-up of illegal activity.


As a general rule, when the statute under which an alien is convicted includes some crimes which may, and some which may not, involve moral turpitude, an alien is not excludable or deportable on moral turpitude grounds unless the record of conviction itself demonstrates that the particular offense involved moral turpitude.  Matter of Short, 20 I&N Dec. 136 (BIA 1989); Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979); Matter of Garcia, 11 I&N Dec. 521 (BIA 1966); Matter of C, 5 I&N Dec. 65 (BIA 1953); see also Hamdan v. INS, 98 F.3d 183, 187 (5th Cir. 1996) (holding that all possible crimes encompassed within a statutory provision must necessarily involve moral turpitude in order to find that a conviction under that statute is for a crime involving moral turpitude). Here the applicant’s conviction occurred under a statutory provision which encompasses at least some violations that do not involve moral turpitude. Further, the record of conviction in this case demonstrates that the applicant’s offense did not involve moral turpitude. We therefore find that the crime of which the applicant was convicted is not one involving moral turpitude and that he is not inadmissible under section 212(a)(2)(A)(i)(I) of the Act.[162]


If consultation of the record of conviction successfully narrows the elements of which the noncitizen could have been convicted, the categorical analysis is again applied to the narrowed set of elements to determine if the minimum conduct sufficient to constitute that offense triggers a ground of removal.[163] 


Even after the court has conducted a divisible statute analysis, the court may still be unable to determine whether a conviction triggers a ground of removal.  For example, the Fifth Circuit in United States v. Calderon-Pena[164] found that, even after looking to the record of conviction, and “paring down” the statute to include only the elements to which the noncitizen pleaded guilty, the pared-down statute still did not establish that the offense of which the noncitizen had been convicted was invariably a crime of violence.  Therefore, the conviction did not qualify as a crime of violence.


Unfortunately, the BIA and the circuit courts are sometimes less than clear either in their descriptions or their applications of divisible-statute analysis.  Each circuit may have its own method and terminology when it comes to dividing a statute.  The Ninth Circuit, for example, distinguishes between the “categorical approach” (in which no resort to the record is allowed) and the “modified categorical approach,” in which it applies divisible statute analysis to consult the record.[165]  The Seventh Circuit, on the other hand, distinguishes between a “charge-offense,” which is dependent upon the elements of the crime and can only be determined by looking to the statute, and a “real-offense,” for which the court may examine the “charging papers” to determine the elements of the statute to which the noncitizen was found guilty.[166]  The Third Circuit has said that “in some cases the disjunctive phrasing of the statute of conviction will . . . invite inquiry into the specifics of the conviction.”[167] 


Although essentially applying the same analysis, the differing terminology and methods often result in confusion and misunderstanding.  The Seventh Circuit terminology, in particular, suggests that the court can look to the underlying facts of the case and beyond the record of conviction.  This is not correct, even under the law of the Seventh Circuit.[168]  This confusion has, unfortunately, resulted in a mistaken decision from the First Circuit, in which the court has decided that it may depart from the Taylor categorical analysis in immigration cases.[169]

[154] See § § 16.2-16.8, supra.

[155] Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) (if the statute defining the offense of conviction encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding on the basis of a conviction for violating that statute, unless the statute is divisible into discrete subsections of acts that are and those that are not crimes involving moral turpitude, and the record of conviction establishes conviction of a subsection defining a deportable offense).

[156] See generally Barbara Hines, Selected Issues Relating to Crimes of Moral Turpitude, in 2 American Immigration Lawyers Association, 2000-01 Immigration and Nationality Law Handbook 277, 280 (Randy P. Auerbach, et al., Eds., 2000).

[157] This analysis predates Taylor.  See Matter of T, 2 I. & N. Dec. 22 (BIA 1944).

[158] Taylor v. United States, 495 U.S. 575, 110 S.Ct. at pp. 2159-2160 (1990).

[159] Ibid., 110 S.Ct. at 2160.

[160] United States v. Torres-Diaz, 438 F.3d 529 (5th Cir. Jan. 30, 2006) (different subsections of a criminal statute constitute different offenses for purposes of determining the nature of the conviction to see whether a sentence enhancement should be imposed under USSG § 2L1.2 for illegal re-entry); accord, United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir. Aug 14, 2001) (“For the purpose of defining a ‘crime of violence,’ the different subsections of ... [the underlying statute of conviction] should be treated as separate offenses”); United States v. Calderon-Pena, 383 F.3d 254, 258 (5th Cir. Aug. 24, 2004) (en banc).

[161] Montero-Ubri v. INS, 229 F.3d 319 (1st Cir. 2000) (if the statute of conviction is divisible, including both crimes of moral turpitude and crimes not involving moral turpitude, the immigration court may consider the documents comprising the record of conviction (i.e., the indictment, charging papers, conviction documents, and the like) to determine which type of crime was the crime of which the noncitizen was convicted).  See also United States ex rel. Mongiovi v. Karnuth, 30 F.2d 825 (D.N.Y. 1929); United States ex rel. Teper v.  Miller, 87 F.Supp. 285 (D.N.Y. 1949); United States v. Carrollo, 30 F.Supp. 3 (D.Mo. 1939); United States ex rel. Guarino v. Uhl, 27 F.Supp. 135 (D.N.Y. 1939), rev’d on other grounds, 107 F.2d 399 (2d Cir. 1940); United States ex rel. Pellegrino v. Karnuth, 23 F.Supp. 688 (D.N.Y. 1938); United States ex rel. Schreiber v. Reimer, 19 F.Supp. 719 (D.N.Y. 1937); Matter of Marchena, 12 I. & N. Dec. 355 (BIA 1967); Matter of Garcia, 11 I. & N. Dec. 521 (BIA 1966); Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962).

[162] Matter of LVC, 22 I. & N. Dec. 594 (BIA 1999) (en banc) (convictions of causing a financial institution to fail to file currency transaction reports and of structuring currency transactions to evade reporting requirements, in violation of 31 U.S.C. § § 5324(1) and (3) (1998), where offenses did not include morally reprehensible conduct, did not constitute crimes involving moral turpitude, overruling Matter of Goldeshtein, 20 I. & N. Dec. 382 (BIA 1991), rev’d, Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993)).

[163] See § § 16.3-16.8, supra.

[164] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc) (Texas child endangerment statute is not a crime of violence).

[165] See, e.g., Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1222 (9th Cir. 2004) (“If the state statute is over-inclusive, meaning that conduct that does and does not qualify as an aggravated felony is criminalized, we analyze the statute under a modified categorical approach.”) (quotation and citation omitted); Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).

[166] See, e.g., Flores v. Ashcroft, 350 F.3d 666 (7th Cir. Nov. 26, 2003) (in dictum finding that a conviction of battery, when the victim was the noncitizen’s spouse, could be used to sustain deportability under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), even though the statute of conviction had no “domestic violence” element).  See discussion in § 16.7, supra.

[167] Singh v. Ashcroft, 383 F.3d 144, 148 (3d Cir. Sept. 17, 2004).

[168] See, e.g., Szucz-Toldy v. Gonzalez, 400 F.3d 978 (7th Cir. Mar. 11, 2005) (Illinois conviction for “harassment by telephone” under 720 ILCS § 135/1-1(2), prohibiting “making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number,” is not an aggravated felony crime of violence for immigration purposes because it is not necessary to prove the use or threatened use of physical force to sustain a conviction under the statute).

[169] Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006).  See § 16.7(A), supra.



Second Circuit

Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) ("We have adopted a "categorical approach" to deciding whether a crime of conviction fits within the definition of "aggravated felony" in 1101(a)(43), thereby rendering an alien removable under 1227(a)(2)(A)(iii). Santos v. Gonzales, 436 F.3d 323, 325 (2d Cir.2006) (per curiam). Under this approach, which is sometimes called the Taylor-Shepard approach, after Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), "the singular circumstances of an individual petitioner's crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant[.]"Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001) (alteration in original) (internal quotation marks and citation omitted). In other words, "[w]e look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime. " Dulal-Whiteway, 501 F.3d at 121 (quoting Canada v. Gonzales, 448 F.3d 560, 565 (2d Cir.2006)). We have, however, modified this approach in one respect: When "a criminal statute encompasses diverse classes of criminal acts-some of which would categorically be grounds for removal and others of which would not-we have held that [the] statute[ ] can be considered divisible "; the agency may then "refer[ ] to the record of conviction for the limited purpose of determining whether the alien's conviction was under the branch of the statute that permits removal." Dickson v. Ashcroft, 346 F.3d 44, 48-49 (2d Cir.2003). While we have yet to determine how to utilize this approach in all situations, see, e.g., Dulal-Whiteway, 501 F.3d at 124-29 (noting that "we have not explicitly queried" how to approach statutes "where only one type of generic conduct ... is proscribed, but an alien can commit the conduct both in ways that would render him removable ... and in ways that would not"), its application to cases involving removal under 8 U.S.C. 1227(a)(2)(A)(iii) remains the law of our Circuit.")

Fourth Circuit

Salem v. Holder, ___ F.3d ___, ___, 2011 WL 1998330 (4th Cir. May 24, 2011) (The Supreme Court has adopted the categorical approach in the criminal-sentencing context to maintain fidelity to congressional intent, safeguard defendants' Sixth Amendment rights, and minimize a range of practical concerns. E.g., Taylor v. United States, 495 U.S. 575, 600"01 (1990); see also United States v. Alston, 611 F .3d 219, 225 (4th Cir.2010) (enumerating twin aims of categorical approach as avoiding collateral trials and protecting defendants' Sixth Amendment rights).).

Eighth Circuit

United States v. Reyes-Solano, 543 F.3d 474, 2008 (8th Cir. Sept. 26, 2008) ("In determining whether a pre-removal conviction based on a guilty plea was for a crime of violence under 2L1.2(b)(1), we apply the "categorical approach" prescribed in Shepard, 544 U.S. at 26. Under this approach, we must "look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to [Reyes-Solano's pre-removal] crime." Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). However, "[i]f the statute criminalizes both conduct that would qualify as a crime of violence and conduct that would not, the court may consider the terms of the charging document or plea agreement as well as a transcript in which the defendant confirmed the factual basis for his plea in order to determine whether the prior conviction was for a crime of violence." United States v. Lopez-Zepeda, 466 F.3d 651, 653 (8th Cir.2006); see United States v. Vazquez-Garcia, 449 F.3d 870, 873 (8th Cir.2006), cert. denied, 127 S.Ct. 1149 (2007).").

Ninth Circuit

Almanza-Arenas v. Holder, ___ F.3d ___, ___ (9th Cir. Nov. 10, 2014) (The difference between indivisible and divisible statutes is that indivisible statutes may contain multiple, alternative means of committing the crime, [but] only divisible statutes contain multiple, alternative elements of functionally separate crimes. Rendon v. Holder, 764 F.3d 1077, 1084"85 (9th Cir. 2014) (emphasis in original). A jury faced with a divisible statute must unanimously agree on the particular offense of which the petitioner has been convicted (and thus, the alternative element), however, when presented with an indivisible statute the jury need not agree on which of the alternative means the petitioner used to commit the offense. Id. at 1085.).
In Young v. Holder, 697 F.3d 976 (9th Cir. Sept. 17, 2012) (en banc), the Ninth Circuit held that Petitioner failed to exhaust the claim that his conviction was not for a violation of a law relating to a controlled substance within the meaning of 8 U.S.C. 1227(a)(2)(B)(i), so the court lacked jurisdiction over that claim. It also held that the evidentiary limitations articulated in Shepard v. United States, 544 U.S. 13, 26 (2005), apply when determining, under the modified categorical approach, whether a prior conviction renders an alien ineligible for cancellation of removal as an aggravated felon under 8 U.S.C. 1229b. It held that under the modified categorical approach, a guilty plea to a conjunctively phrased charging document establishes only the minimal facts necessary to sustain a defendant's conviction. In other words, when a conjunctively phrased charging document alleges several theories of the crime, a guilty plea establishes a conviction under at least one, but not necessarily all, of those theories. In so deciding, the court reconciled its inconsistent precedents on this issue by adopting one line of cases"including Malta"Espinoza v. Gonzales, 478 F.3d 1080, 1082 n.3 (9th Cir.2007)"and rejecting the other, including United States v. Snellenberger, 548 F.3d 699, 701(9th Cir.2008) (en banc) (per curiam). Finally, it held that an alien cannot carry the burden of demonstrating eligibility for cancellation of removal by merely establishing that the relevant record of conviction is inconclusive as to whether the conviction is for an aggravated felony. It overruled Sandoval"Lua v. Gonzales, 499 F.3d 1121, 1130"31(9th Cir.2007), and Rosas"Castaneda v. Holder, 655 F.3d 875, 883"84 (9th Cir.2011), to the extent that they conflict with this holding.