Criminal Defense of Immigrants


§ 16.11 1. Discrete Subsections

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The easiest application of divisible statute analysis occurs where a statute has been divided by the legislature into individual numbered (or lettered) subsections, each defining a single separate crime.[172] 


For example: “Section 265.01 of the New York Penal Law consists of five subdivisions.  The third subdivision involves a firearm, and the first subdivision could, but might not necessarily, involve a firearms conviction.  As such, it is a divisible statute.”[173] 


If the judgment specifies only that the defendant was convicted of violating New York Penal Law § 265.01, but does not specify a particular subdivision, the court may examine the rest of the record of conviction to determine whether the defendant was convicted of New York Penal Law § 265.01(1), (2), (3), (4), or (5).  Since (2), (4), and (5) do not require use of a firearm as an essential element, if the record of conviction does not establish which subdivision the defendant was convicted of violating, then the party with the burden of proof[174] loses, i.e., the government cannot clearly show that the conviction was a firearms conviction, and the respondent cannot clearly show that it was not.  The same is true if the record of conviction establishes that the conviction must have been for either (2) [non-firearm] or (3) [firearm], but gives no further clarification.[175]  Obviously, if the record specifically identifies (2), (4), or (5) — one of the non-firearms offenses — as the offense of conviction, the conviction cannot be considered a firearms conviction.


Since conviction of violating subdivision (1) may or may not require use of a firearm, that subsection is subject to the “minimum conduct” analysis,[176] and if the record of conviction revealed that the noncitizen was convicted under that subsection, the government cannot establish deportability.[177]


                Assuming that the government bears the burden of proof, if criminal counsel can keep the record of conviction clear of any evidence that the defendant clearly violated a part of the statute that triggers removability, the charge of removal cannot be sustained.  Before conviction, defense counsel may have to obtain an amended charge, or tailor the guilty plea so as to admit only a violation of the safe portion of the statute, in order to accomplish this.

[172] See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) (Arizona conviction in 2003 of class 2 misdemeanor domestic violence/assault, in violation of A.R.S. § § 13-1203(A), 13-3601 [which can either be under (1) by “[i]ntentionally, knowingly or recklessly causing any physical injury to another person” or simple assault under (2) by “[i]ntentionally placing another person in reasonable apprehension of imminent physical injury”], does not constitute a crime of moral turpitude for deportation purposes since the record of conviction does not specify which subdivision of the divisible statute was the offense of which respondent was convicted); Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346 (11th Cir. Dec. 19, 2005) (Florida conviction of grand theft, in violation of Fla. Stat. § 812.014(1), did not constitute aggravated felony theft, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for immigration purposes, because the statute was divisible as subsection (b) required only intent to appropriate use of the property, and the record of conviction did not establish that the defendant was convicted under subsection (a) which would have qualified as an aggravated felony).

[173] Matter of Madrigal-Calvo, 21 I. & N. Dec. 323, 325 (BIA 1996).

[174] See § 15.26, supra.

[175] See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) (“The administrative record before us does not specify whether Fernandez-Ruiz pled guilty to subsection (A)(1) or (A)(2). (Footnote omitted.)  Accordingly, if either subsection (A)(1) or (A)(2) covers conduct that is not a crime of moral turpitude, then the 2003 conviction cannot, categorically, be such an offense.”); Notash v. Gonzales, 427 F.3d 693, 697 (9th Cir. 2005) (observing that because record contained no evidence indicating under which section of the statute petitioner was convicted, he is removable only if a conviction under both sections would qualify as a crime involving moral turpitude).

[176] See § 16.8, supra.

[177] See also United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. Aug. 4, 2004) (Pennsylvania conviction for terroristic threats, in violation of 18 Pa. Cons. Stat. § 2706(a)(2003), was not established to be a crime of violence, under U.S.S.G. § 2L1.2, comment (b)(ii)(I), for purposes of enhancing a sentence for illegal re-entry, since the offense is divisible and only the first of the three subsections qualifies as a crime of violence).



Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276 (June 20, 2013) (the modified categorical approach does not authorize a fact-based inquiry; court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the conviction.).

Second Circuit

James v. Mukasey, 522 F.3d 250 (2d Cir. Mar. 25, 2008) (remanding to the BIA to decide whether New York misdemeanor conviction of endangering the welfare of a child, in violation of Penal Law 260.10 ["knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health"], is a divisible statute).

    This case leaves open, and remands to the BIA, the issue of whether a statute containing a single set of elements [or in this case two sets] that does not necessarily include aggravated felony conduct can be found to be "divisible" for purposes of applying the modified categorical analysis and making reference to the record of conviction. The law has been, of course, that a statute containing only one offense cannot be found divisible. Instead, the immigration authorities must apply the minimum conduct test when a statute contains only one set of elements that may be met by conduct that both falls within and outside of a ground of removal.
The Second Circuit stated:

"Up to this point," we observed recently in Dulal-Whiteway v. U.S. Department of Homeland Security, "we have explicitly found statutes divisible only where the removable and non-removable offenses they describe are listed in different subsections or comprise discrete elements of a disjunctive list of proscribed conduct"; "we have not explicitly queried whether this logic extends to a statute ... 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 ...." 501 F.3d 116, 126-27 (2d Cir.2007) (emphasis added). The statute in Dulal-Whiteway (proscribing fraud to obtain things valuing over $1,000) is one such a statute. Id. at 126. The statute in this case is another. FN4 We further observed in Dulal-Whiteway that there are at least three ways of approaching such a statute -- none of which we have explicitly adopted or rejected. We could "find[ ] divisible only those statutes where the alternative means of committing a violation, some of which constitute removable conduct and some of which do not, are enumerated as discrete alternatives." Id. at 127 (emphasis added). Or we could "take the position that all statues of conviction may be considered divisible regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct." Id. at 128. And somewhere in the middle is a third approach, developed by the Third Circuit, under which a criminal statute may be considered divisible if either (1) the statute of conviction is phrased in the disjunctive or divided into subsections such that "some variations of the crime of conviction meet the aggravated-felony requisites and others do not," or (2) the relevant removability provision "invite[s] inquiry into the facts underlying the conviction at issue." Singh v. Ashcroft, 383 F.3d 144, 161, 162 (3d Cir.2004)).FN5 "Neither Supreme Court nor Second Circuit precedent," we concluded in Dulal-Whiteway, "compels a conclusion one way or the other." 501 F.3d at 127.FN6 And no case since Dulal-Whiteway has provided greater guidance as to how we would treat a statute like New York Penal Law section 260.10. Accordingly, the IJ and BIA based their decision on an incorrect premise.

Ninth Circuit

Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (rejecting argument that the modified categorical analysis is inapplicable to Health & Safety Code 11377(a); statutes specific reference to the California controlled substances lists allows conviction).

Tenth Circuit

United States v. Torres-Romero, 537 F.3d 1155, 2008 WL 3843344 (10th Cir. Aug. 19, 2008) (looking to law of the state of conviction to determine whether conjunctive charge means that the defendant has admitted all of the conjunctive elements), agreeing with United States v. Morales-Martinez, 496 F.3d 356, 359 (5th Cir.2007).