(A)  Surplusage.  For example, archaic boilerplate will not be considered in determining the nature of the conviction:

 

The INS also argues that the indictment contains the term “with force and arms,” necessarily referring to non-custodial provisions of the statute. This use of archaic boilerplate, unnecessarily included in many Louisiana indictment forms, regardless of whether the crime involves a use of force or arms, is virtually irrelevant to whether the charge was brought under any particular section of the simple kidnapping statute.[260]

 

Thus, surplusage in the charge will not be considered as part of the record of conviction.  Surplusage also includes allegations that go beyond the elements of the crime as defined by statute.[261]

[260] Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996).

[261] Matter of Perez-Contreras, 20 I. & N. Dec. 615, 617 n.4 (BIA 1992) (where no element of the crime of conviction related to the use of a weapon, the statement in the criminal information that the petitioner had used a firearm was “surplusage”); Vue v. INS, 92 F.3d 696, 700-701 (8th Cir. 1996).

CONVICTION " NATURE OF CONVICTION -- CATEGORICAL ANALYSIS " ELEMENTS " TEST FOR ELEMENTS VERSUS MEANS
Schaud v. Arizona. 501 U.S. 624, 632-33 (1991) (plurality opinion) (when a criminal statute provides alternative routes to a conviction, whether jurors must be unanimous with respect to a particular route depends on the answers to two questions: First, did the legislature intend to create different offenses or different means for violating a single offense? Second, if the legislature intended to create different means for violating the same offense, is that statutory definition constitutional under the Due Process Clause?). Note: The Third Circuit elaborated on the Schaud framework in United States v. Edmonds, 80 F.3d 810 (3d Cir. 1996) (en banc). Thanks to Dan Kesselbrenner. This helpful distinction is made also by the Fourth Circuit in the Royal decision, not an immigration case, but citing Descamps, 133 S. Ct. at 2285 (Rather than alternative elements, then, offensive physical contact and physical harm are merely alternative means of satisfying a single element of the Maryland offense. Consequently, because [t]he dispute here does not concern any list of alternative elements, the modified approach "has no role to play."). This rule should apply in immigration cases as well.

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS
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.).

BIA

RECORD OF CONVICTION - ALFORD PLEA - PROSECUTION STATEMENT OF FACTS AS FACTUAL BASIS DOES NOT CONSTITUTE PART OF RECORD OF CONVICTION WHERE DEFENDANT DOES NOT ADMIT THEIR TRUTH
Matter of Dennis, A041-468-793 (BIA Aug. 25, 2008) (unpublished) ("BIA affirms the decision of an Immigration Judge holding that a recitation of facts by a criminal prosecutor during a plea hearing cannot be considered as part of the modified categorical approach if the defendant pleads guilty under the Alford doctrine and thus does not confirm the truthfulness of the facts during the plea hearing."), siting North Carolina v. Alford, 400 U.S. 25 (1970). http://bibdaily.com/pdfs/BIAu%208-25-08%20Dennis.pdf

STATUTORY INTERPRETATION - RULE OF SUPERFLUITIES
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Pauley, Boardmember, concurring) ("Indeed, it appears that crimes of child neglect or abandonment are a subset of "child abuse" and, although technically redundant, were likely inserted by Congress to assure coverage of such crimes, however denominated by the State. See Ali v. Federal Bureau of Prisons, 128 S. Ct. 831 (2008) (discussing the rule of superfluities in the context of Congress's inclusion of reference to certain specific types of law enforcement officers, along with the all-encompassing language "any other" such officer).")

CATEGORICAL ANALYSIS - FACTS V. ELEMENTS
Matter of Aruna, 24 I.& N. Dec. 452 (BIA 2008) (Maryland misdemeanor conviction for violation of Maryland Criminal Law 5-602, distribution of a controlled substance, is an drug trafficking aggravated felony because the offense would be a felony if prosecuted under federal law; 21 U.S.C. 841(b)(4), which treats distribution of a small amount of marijuana without remuneration as a misdemeanor is not a separate federal offense, but rather a "mitigating exception" to the federal felony offense; therefore the categorical analysis is inapplicable to that section).

NOTE: A good example of outcome-based legal reasoning (and the BIA trying to have its cake and eat it too), this case may actually have some positive effect in fighting against Matter of Babaisakov, and other BIA attempts to avoid the categorical analysis. The BIA in this case pushes the "elements" vs. "facts" distinction very hard, providing language counsel can use in other cases.

NATURE OF CONVICTION - FACTS V. ELEMENTS
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 388 (BIA Dec. 13, 2007) (en banc) ("A criminal "offense" is defined by its "elements," Schmuck v. United States, 489 U.S. 705, 716-17 (1989), with "elements" being understood as facts that must be proven to a jury beyond a reasonable doubt in order to convict. In re Winship, 397 U.S. 358, 364 (1970).").

RECORD OF CONVICTION - ELEMENT OF OFFENSE - SENTENCE ENHANCEMENT - SENTENCE FACTOR LAWFULLY FOUND BY A PREPONDERANCE OF THE EVIDENCE DOES NOT CONSTITUTE AN ELEMENT OF THE OFFENSE UNDER APPRENDI
The impact of Matter of Martinez-Zapata, 24 I. & N. Dec. 424 (BIA 2007), holding certain sentence enhancements to be equivalent to elements of the offense for purposes of determining the nature of the offense for immigration purposes, does not apply where a sentence enhancement has been found true by a mere preponderance of the evidence, whether it be found by a court or jury. This is because Apprendi v. New Jersey, 530 U.S. 466 (2000), on which Martinez-Zapata is based, held that a sentencing court's finding by a preponderance of the evidence of the truth of a sentence enhancement that increased maximum penalty of offense was unconstitutional in violation of the jury trial guarantee of the United States Constitution because it constituted an element of the offense under that provision.

   This offers a number of favorable arguments counsel can use to argue that a given sentence enhancement does not constitute an element of the offense for purposes of determining the nature of the offense under immigration law. The BIA itself recognized important limitations on its decision.

   Importantly, we point out that Apprendi and its progeny do not encompass all sentence enhancements; the Apprendi analysis will not result in all sentence enhancements being the equivalent of "elements" of an offense. Rather, those post-Apprendi enhancements that may still permissibly be found by a preponderance of the evidence by a sentencing judge, including those under the United States Sentencing Guidelines and many State sentencing schemes, will not be the equivalent of an "element" of an offense. See, e.g., Cunningham v. California, 127 S. Ct. 856 (2007); Blakely v. Washington, supra; Ring v. Arizona, 536 U.S. 584 (2002). It is crucial that an examination of the specific statutory sentencing scheme be conducted in order to make the determination. To equate to an element it must be shown that, under the law of the convicting jurisdiction, a sentencing factor had to be proved to a jury beyond a reasonable doubt if it was not admitted by the defendant.

Martinez-Zapata, supra, at 430. In particular, a number of limitations and arguments emerge from this decision:

   (1) Martinez-Zapata cannot retroactively convert a sentence enhancement found by a mere preponderance into an element of the offense. Many sentence enhancements imposed prior to June 26, 2000, the date on which Apprendi was decided, were imposed after a sentencing judge found the sentence enhancement true by a preponderance of the evidence. These sentence enhancements cannot constitute elements of the offense under Martinez-Zapata, because it was not in fact admitted by the defendant or found true beyond a reasonable doubt by a jury. Martinez-Zapata expressly states that its rule (like its rationale) applies only with respect to "any post-Apprendi sentencing factor that is shown to have been found in accordance with the criminal law protections of a jury trial and burden of proof afforded a defendant in relation to the elements of an offense." Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.5 (BIA 2007). "The holding in Matter of Rodriguez-Cortes also continues to apply in pre-Apprendi sentencing determinations." Matter of Martinez-Zapata, supra, at 429 (BIA 2007).

   (2) Even after Apprendi, it took some time before courts implemented that decision, so it is important to verify that the sentence enhancement in the case under consideration was in fact admitted by the defendant or found true beyond a reasonable doubt by a jury. If not, the sentence enhancement does not in fact constitute an element of the offense. Even today, because of the ongoing confusion in this area, many courts are not in fact implementing Apprendi correctly. The courts' learning process is sometimes slow.

   (3) Be alert for instances in which the sentence enhancement was found by a preponderance, rather than beyond a reasonable doubt. In jury cases, check the jury instructions relating to the sentence enhancement to verify the burden of proof was in fact beyond a reasonable doubt. The BIA has cautioned that the inquiry in these cases is very much dependent on the exact mechanics of the statutes in the jurisdiction of conviction:

However, not all facts bearing on sentencing are required to be found beyond a reasonable doubt as a result of Apprendi and Blakely. In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court made determinations under the United States Sentencing Guidelines advisory, thereby allowing such findings to continue to be made solely by Federal judges under a preponderance of the evidence standard. Further, the States have responded in various ways to Apprendi and Blakely, such that a careful understanding of specific State law is needed to determine whether a particular sentencing factor, if not admitted during the criminal proceedings, would be required to be found beyond a reasonable doubt by a jury.

Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 428-429 (BIA 2007) [footnote omitted].

   (4) Following Apprendi, Martinez-Zapata applies only to sentence enhancements that increase the maximum possible statutory penalty for the offense. Therefore, sentence enhancements are not equivalent to elements of the offense, for immigration purposes, if they do not increase the maximum statutory penalty for the conviction, but merely increase the actual sentence ordered for the conviction within a fixed statutory maximum, as is the case under the United States Sentencing Guidelines and similar state sentence frameworks.

   (5) Martinez-Zapata does not apply where a sentence enhancement does not increase the statutory maximum for the offense, but merely the statutory minimum. See Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.4 (BIA 2007) ("Compare section 481.134(c) of the Texas Health and Safety Code, which is not subject to Apprendi in accordance with Harris v. United States, 536 U.S. 545 (2002), because it merely increases the statutory minimum sentence but does not exceed the statutory maximum sentence. See Williams v. State, 127 S.W.3d 442, 445 (Tex. App. 2004) (finding that section 481.134(c) does not create a separate offense because its only effect is to raise the penalty when an enumerated offense is committed in a designated place); see also Uribe v. State, 573 S.W.2d 819 (Tex. Crim. App. 1978).").

   (6) The federal constitutional guarantee of the right to a jury trial does not apply to misdemeanors carrying a maximum sentence of six months or less. Therefore, in such misdemeanor cases, there is no constitutional right to have a jury finding of the true of many sentence enhancements. This gives rise to an argument that Martinez-Zapata does not convert such sentence enhancement findings into elements of the offense for immigration purposes. See Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 428 n.2 (BIA 2007) ("Apprendi v. New Jersey, supra, and its progeny focus on admissions by the defendant or findings by a jury beyond a reasonable doubt. Offenses carrying maximum sentences of 6 months or less, however, are not required to be tried before a jury. See Lewis v. United States, 518 U.S. 322 (1996).") The BIA, however, has expressly left this question open. Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 430 n.6 (BIA 2007) ("We have no occasion here to decide whether we would treat as an element any such factor required by the convicting jurisdiction to be proved beyond a reasonable doubt to a court rather than a jury."), citing Harris v. United States, 536 U.S. 545 (2002), and Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004).

   (7) The sentence enhancement in Martinez-Zapata converted a Class B misdemeanor, in violation of Texas Health & Safety Code 481.121(b)(1) to a Class A misdemeanor, in violation of Texas Health & Safety Code 481.134(f)(1). Martinez-Zapata, supra, at 425. This can fairly be said to affect the "conviction" directly, since the defendant under this statute is now "convicted" of a Class A misdemeanor, rather than a Class B misdemeanor. On the other hand, a sentence enhancement that merely alters the maximum possible sentence for a conviction cannot be said to affect the conviction in the same way. Counsel can argue that this difference should lead to a distinction, but the chances of a court adopting this distinction seem limited.

   (8) Martinez-Zapata expressly applies only with respect to "any post-Apprendi sentencing factor that is shown to have been found in accordance with the criminal law protections of a jury trial and burden of proof afforded a defendant in relation to the elements of an offense." Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 (BIA 2007). Therefore, counsel for respondent can argue that a given sentence enhancement was imposed in violation of due process, or another fundamental federal constitutional right, such as the Apprendi right to jury trial, and therefore does not under the facts of this case constitute an element of the offense of conviction. Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.5 (BIA 2007).

RECORD OF CONVICTION - SENTENCE ENHANCEMENT - ELEMENTS
Matter of Martinez-Zapata, 24 I. & N. Dec. 424 (BIA 2007) (any fact, including a fact contained in a sentence enhancement, that serves to increase the maximum penalty for a crime and that is required to be found by a jury beyond a reasonable doubt if not admitted by the defendant, is to be treated as an element of the underlying offense; a conviction involving the application of such an enhancement is a conviction for the enhanced offense), superseding Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA 1992), in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). http://www.usdoj.gov/eoir/vll/intdec/vol24/3594.pdf

RECORD OF CONVICTION - SENTENCE ENHANCEMENT - ELEMENTS - OPEN QUESTION WHETHER SENTENCE ENHANCEMENT EQUALS AN ELEMENT FOR PURPOSES OF DETERMINING THE NATURE OF THE CONVICTION UNDER IMMIGRATION LAW WHERE THE CONVICTING JURISDICTION REQUIRES IT BE PROVEN BEYOND A REASONABLE DOUBT TO A COURT RATHER THAN A JURY
Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 430 n.6 (BIA 2007) ("We have no occasion here to decide whether we would treat as an element any such factor required by the convicting jurisdiction to be proved beyond a reasonable doubt to a court rather than a jury."), citing Harris v. United States, 536 U.S. 545 (2002), and Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004).

RECORD OF CONVICTION - FACTS V. ELEMENTS
United States v. Lopez-DeLeon, __ F.3d __, 2008 WL 82521 (5th Cir. Jan. 9, 2008) (applying modified categorical analysis to find that California conviction of statutory rape, under Penal Code 261.5(c) was sexual abuse of a minor for illegal re-entry sentencing purposes, even though conviction statute was overbroad, where dismissed charge indicated that the victim was 14 years old).

This is a horrible decision. Not only does the court here look at the underlying facts of the conviction, rather than the minimum conduct punishable under the statute, the court also looks to information from a dismissed count to make its determination that the offense was SAM.

First Circuit

NATURE OF CONVICTION - ELEMENTS VS. FACTS
Lopes v. Keisler, 505 F.3d 58 (1st Cir. Oct. 26, 2007) ("[T]his court will consider whether the crime the petitioner actually committed -- as demonstrated by the record of conviction -- constitutes a crime of violence, rather than hypothesize whether every conceivable conviction under a broad statute would constitute a crime of violence."), following Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006).

Second Circuit

RECORD OF CONVICTION - DISMISSED COUNTS -- FACTS CHARGED IN INDICTMENT NOT PART OF RECORD OF CONVICTION
James v. Mukasey, 522 F.3d 250 (2d Cir. Mar. 25, 2008) ("We reminded the District Court that "[f]actual matters considered as a basis for sentence must have some minimal indicium of reliability beyond mere allegation," and that "an indictment is not meant to serve an evidentiary function. Its primary purpose is to acquaint the defendant with the specific crime with which he is charged...." Id. at 701 (internal quotations marks omitted) (alteration in original). In this case, the IJ and BIA relied upon a factual allegation in the charging instrument -- that James had sexual intercourse with a sixteen-year-old when he was twenty-two -- to conclude that James was convicted of sexual abuse of a minor. But this factual allegation was not "actually and necessarily pleaded" to in order to establish the elements of endangering the welfare of a child.").

NATURE OF THE CONVICTION - FACTS V. ELEMENTS
Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) ("a petitioner necessarily pleads to facts when, for example, he actually admits specific facts in his plea colloquy or comparable judicial record that establish he violated a divisible statute in manner that satisfies the criteria of the pertinent removability statute. Further, if the petitioner is charged with violating a divisible state statute in manner that satisfies the elements of the pertinent removability statute and he pleads guilty, he has "necessarily pleaded" to an offense for which he is removable.").

Fifth Circuit

NATURE OF CONVICTION " JUDICIAL SENTENCING FINDING THAT VICTIM WAS 16 YEARS OLD DOES NOT DETERMINE NATURE OF OFFENSE
Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) (Rodriguez's Adjudication of Guilt states that [t]he Sex Offender Registration Requirements ... do apply to the Defendant. The age of the victim at the time of the offense was 16 years of age. However, this statement does not indicate that the age of the victim was an element of the offense under which Rodriguez was convicted. Nor is this an explicit factual finding by the trial judge to which the defendant assented. [Footnote omitted.] Rodriguez did not plead guilty to the sexual assault of a child. [Footnote omitted.]); quoting Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. Aug. 24, 2006).

CATEGORICAL ANALYSIS - NON-ELEMENTS IN CHARGING DOCUMENT ARE SURPLUSAGE
United States v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. May 22, 2008) (court may not look to language in charge, that defendant committed burglary "willfully and unlawfully" to determine whether the California burglary conviction fits within they Taylor generic definition of burglary where an "unlawful" entry into the building is not an element of the crime of conviction; because the California burglary statute is not divisible, there was no need to look to the record of conviction), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007).

Sixth Circuit

NATURE OF OFFENSE - MODIFIED CATEGORICAL ANALYSIS - SIXTH CIRCUIT TEST
United States v. Medina-Almaguer, 559 F.3d 420 (6th Cir. Mar. 12, 2009) ("In the context of a conviction stemming from a guilty plea-as Medina-Almaguer's predeportation conviction did-the question is whether the court documents establish that the defendant "necessarily admitted" the elements of a predicate offense through his plea. Id. at 16; see also id. at 20-21, 26; cf. Taylor, 495 U.S. at 602. For that purpose, a sentencing court generally may consider the charging document, a written plea agreement, a plea-colloquy transcript in which the defendant confirmed the factual basis for the plea or some other "comparable judicial record," Shepard, 544 at 26, so long as they establish what the defendant "necessarily admitted," id. at 16. Otherwise, the sentencing court must stand by the fact of conviction and the definition of the offense-whether they establish the nature of the prior conviction or not. See, e.g., United States v. McGrattan, 504 F.3d 608, 615-616 (6th Cir.2007); United States v. Bernal-Aveja, 414 F.3d 625, 627-28 (6th Cir.2005).").

Ninth Circuit

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS OF A DIVISIBLE STATUTE
Almanza-Arenas v. Holder, ___ F.3d ___, ___ (9th Cir. Nov. 10, 2014) (Where the petitioner was convicted under a divisible statute, we apply the modified categorical approach to determine which alternative element in a divisible statute formed the basis of the defendants conviction. Descamps, 133 S. Ct. at 2293. This inquiry is legal, not factual, because the [Immigration and Nationality Act] asks what offense the noncitizen was convicted of, . . . not what acts he committed. Moncrieffe v. Holder, 133 S. Ct. 1678, 1685 (2013) (internal citations omitted).).

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " AFFIRMATIVE DEFENSE
United States v. Hernandez, 769 F.3d 1059 (9th Cir. Oct. 20, 2014) (per curiam) (California conviction for being a felon in possession of a firearm under California Penal Code 12021(a)(1), did not categorically qualify as a listed firearms aggravated felony, under INA 101(a)(43)(E), 8 U.S.C. 101(a)(43)(E), and is therefore insufficient to support an illegal reentry sentence enhancement, under U.S.S.G. 2L1.2(b)(1)(C), because the state statute swept more broadly than the federal aggravated felony definition, since the state did not have an exception for antique firearms, as federal law did, though the federal exception was an affirmative defense to the federal offense); see Moncrieffe v. Holder, 133 S.Ct. 1678 (April 23, 2013), retroactively overruling Gil v. Holder, 651 F.3d 1000, 1005"06 (9th Cir.2011)(holding that the antique firearms exception is an affirmative defense that need not be considered in a categorical analysis); Aguilera"Rios v. Holder, 769 F.3d 626, 633, 2014 WL 4800292 (9th Cir. Sept. 29, 2014) (California Penal Code 12021(a)(1) is not a categorical match to 18 U.S.C. 921, 922).

CONVICTION -- NATURE OF CONVICTION " FACTS VS ELEMENTS " PLEA OF GUILTY CONTROLS
United States v. Avery, 719 F.3d 1080, 1084 (9th Cir. Jun. 18, 2013) (As we have stated in other contexts, plea agreements are contracts, and are premised on the notion that the negotiated guilty plea represents a bargained-for quid pro quo. United States v. Escamilla, 975 F.2d 568, 571 (9th Cir.1992) (internal quotation marks omitted).; language in information cannot be counted against defendant if the language is unrelated to the plea; [i]n enforcing a plea agreement, we are bound to construe any ambiguities or inconsistencies in favor of the defendant, ordinarily placing on the government responsibility for any lack of clarity. United States v. Franco"Lopez, 312 F.3d 984, 989 (9th Cir.2002) (internal citations and quotation marks omitted). The government cannot seize upon convenient language contained in the information to substantiate a broader charge that was not incorporated into the plea agreement . . .).

CATEGORICAL ANLAYSIS " RECORD OF CONVICTION " PLEA AGREEMENT
United States v. Cabrera-Gutierrez, ___ F.3d ___, 2013 WL 2378574 (9th Cir. Jun. 3, 2013) (Oregon conviction for violation of ORS 163.425, second degree sexual abuse, was a crime of sexual abuse for federal sex offender registry purposes where the plea agreement indicated that the victim was unable to consent due to intoxication). NOTE: This case was published prior to Descamps v. United States, __ U.S. __ (Jun. 20, 2013).

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " FACTS IN COMPLAINT
Cabantac v. Holder, 693 F.3d 825 (9th Cir. Aug. 23, 2012) (We hold that where, as here, the abstract of judgment or minute order specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment, we can consider the facts alleged in that count.).

NATURE OF OFFENSE - CATEGORICAL ANALYSIS - COURT CANNOT GO OUTSIDE THE ELEMENTS OF THE OFFENSE OF CONVICTION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (in evaluating the nature of the offense of conviction under the categorical analysis for removal purposes, the court cannot go outside the elements of the offense of conviction).

NATURE OF CONVICTION - WEST PLEA
United States v. Vidal, 504 F.3d 1072, 1087-1088 (9th Cir. Oct. 10, 2007) ("The California Supreme Court subsequently characterized a People v. West plea as a plea of nolo contendere that does not establish factual guilt. See In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747, 752 (1992) (describing a People v. West plea as a "plea of nolo contendere, not admitting a factual basis for the plea"); see also United States v. Nguyen, 465 F.3d 1128, 1130 (9th Cir.2006) ("[A] plea of nolo contendere ... is, first and foremost, not an admission of factual guilt. It merely allows the defendant so pleading to waive a trial and to authorize the court to treat him as if he were guilty." (citation omitted)). By entering a West plea a defendant "[does] not admit the specific details about his conduct on the ... counts[to which] he pled guilty." Carty v. Nelson, 426 F.3d 1064, 1068 (9th Cir.2005) (citing In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747); see also West, 91 Cal.Rptr. 385, 477 P.2d at 420 (explaining that by entering a plea agreement a defendant "demonstrates that he ... is prepared to admit each of [the offense]'s elements" but not factual guilt). As a result, unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the requisite factual predicate to support a sentence enhancement.").

NATURE OF CONVICTION - WEST PLEA - LESSER INCLUDED OFFENSE
United States v. Vidal, 504 F.3d 1072, 1087-1088 (9th Cir. Oct. 10, 2007) ("Moreover, in the context of a People v. West plea, "[a] court is not limited to accepting a guilty plea only to the offense charged but can accept a guilty plea to any reasonably related lesser offense." People v. Tuggle, 232 Cal.App.3d 147, 283 Cal.Rptr. 422, 426 n. 10 (Ct.App.1991) (rejecting reliance on the fact that the offense was charged in the conjunctive because the prosecutor could have amended the information before the plea) (citing West, 91 Cal.Rptr. 385, 477 P.2d at 419-20), overruled on other grounds by People v. Jenkins, 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224 (1995). The prosecution need not have formally amended the two counts in order for Vidal to have pled guilty to conduct other than that alleged in the Complaint. See People v. Sandoval, 140 Cal.App.4th 111, 43 Cal.Rptr.3d 911, 926 (Ct.App.2006) (explaining that under California's informal amendment doctrine no "talismanic significance [attaches] to the existence of a written information" and that "a defendant's conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the information").

CONVICTION - NATURE OF CONVICTION - GUILTY PLEA ADMITS ONLY THOSE FACTS NECESSARY FOR A BARE CONVICTION, EVEN IF OTHER SENTENCING ENHANCEMENT FACTS APPEARED IN THE INDICTMENT
United States v. Thomas, 355 F.3d 1191 (9th Cir. Jan. 26, 2004) (a guilty plea is an admission of the formal elements of a criminal charge, and by pleading guilty a defendant admits al the factual and legal elements necessary to sustain a finding of guilt; however, the entry of a guilty plea is not an admission of any facts other than those necessary to convict; the plea does not admit to facts necessary to be proven, beyond a reasonable doubt, to increase the maximum possible sentence under Apprendi).

Other

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

ARTICLE - CRIMES OF MORAL TURPITUDE - CATEGORICAL ANALYSIS - ASSESSMENT WHETHER THE FACTS OF THE OFFENSE COMMITTED INVOLVED MORAL TURPITUDE UNDER SILVA-TREVINO Silva-Trevino Removal Defense Where the Facts of the Offense Did Not Involve Moral Turpitude. By: Norton Tooby
The Attorney General's decision in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 7, 2008), cuts two ways. It allows resort to the underlying facts of the case to deport where the immigrant in fact committed a crime of moral turpitude, even though the offense of conviction does not invariably involve moral turpitude when the elements are assessed under the categorical analysis. The reverse is true as well: a person convicted of a crime, which involves moral turpitude under the elements, is not deportable if the facts of the offense committed did not involve moral turpitude.

This conclusion arises not only from the language of the Silva-Trevino decision, but also from its rationale. In this case, the Attorney General criticized the categorical analysis, saying "these approaches do not adequately perform the function they are supposed to serve: distinguishing aliens who have committed crimes involving moral turpitude from those who have not." (Id. at 688.) In terming this a "shortcoming," the Attorney General implied that it was as much a shortcoming to deport those who had not committed a crime of moral turpitude, as to fail to deport those who had. Later in the opinion, he made this explicit:

By contrast, an approach [i.e., the categorical analysis] that applies the Acts moral turpitude provisions to all convictions under a particular criminal statute if moral turpitude inheres in the "usual" or "common" case is likely to be over-inclusive, because it would allow judges to apply the moral turpitude provisions to aliens whose crimes did not in fact "involve moral turpitude."

(Id. at 691, citing Marciano v. INS, 450 F.2d 1022, 1028 (8th Cir. 1971) [ "The statute says deportation shall follow when the crime committed involves moral turpitude, not when that type of crime commonly or usually does."].)

The Attorney General thus condemns the categorical analysis both for failing to deport those who did commit a crime of moral turpitude, and for deporting those who did not. His solution allows the adjudicator to examine the underlying facts of the case to determine whether the offender in fact committed a crime of moral turpitude.

This is a two-way street. If the respondent did not, in fact, commit a crime of moral turpitude, there should be no removal order under the Silva-Trevino analysis. To order removal under those circumstances would be "over-inclusive" with respect to the purpose of this ground of removal, which seeks to deport only those who in fact committed a crime of moral turpitude.

There are many examples of offenses that in the abstract involve moral turpitude, but where the individual facts of the case do not. Even the offense of theft, with an element requiring intent to permanently deprive the owner of the property, may or may not in fact involve moral turpitude. See United States ex rel. Rizzio v Kenney, 50 F.2d 418 (D.Conn. 1931) (court stated theft always involves moral turpitude, except in unusual circumstances). It has sometimes been suggested that extremely minor thefts or ones committed under extenuating circumstances might not involve moral turpitude. Diaz v. Haig, 594 F.Supp. 1 (D.Wyo. 1981) (theft of food by hungry child or theft of garments by ill-clothed child does not constitute crime of "moral turpitude"); Quilodran-Brau v. Holland, 232 F.2d 183 (3d Cir. 1956) (court expressly did not decide whether there might be exception in extreme case).

As a general matter, however, even petty theft has been found to be CMT, irrespective of the lack of gravity of the offense. Pino v. Landon, 349 U.S. 901 (1955) (petty theft of a dozen golf balls held CMT on principle); Orlando v. Robinson, 262 F.2d 850, 851 (7th Cir. 1959), cert. den., 359 U.S. 980, 3 L.Ed.2d 929, 79 S.Ct. 898 (1959) (larceny of sealed Christmas package that, when opened, proved worth only five dollars held CMT); Quilodran-Brau v. Holland, 232 F.2d 183 (3d Cir. 1956) (court expressly did not decide whether there might be exception in extreme case); Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954), revd on other grounds sub nom. Wilson v. Carr, 41 F.2d 704 (9th Cir. 1930); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929) (noncitizen convicted of stealing $15 and sentenced to confinement for one year was deportable, even though Massachusetts law classified the offense as a "misdemeanor"); Henry v. Ashcroft, 175 F.Supp.2d 688 (S.D.N.Y. 2001) (petty larceny held to be a crime involving moral turpitude); Zgodda v. Holland, 184 F.Supp. 847 (E.D.Pa. 1960) (German conviction as a young girl in 1944, of simple larceny for stealing a small sum of money and a few articles of clothing, apparently motivated by privation, at a time when that city was under severe air attack and the population lived largely underground, held CMT, even though the conviction was expunged from the records under German law in 1954).

The categorical analysis has until now prevented respondents from arguing that they did not in fact commit a crime of moral turpitude because the adjudicator has heretofore been prohibited from considering the facts of the case. Where a conviction under a statute prohibiting stealing invariably involved moral turpitude, the court was not permitted to examine the record of conviction to determine it did not involve CMT. Matter of Garcia, 11 I. & N. Dec. 521 (BIA 1966) (BIA precluded from going beyond record of conviction to consider mitigating circumstances).

Under Silva-Trevino, however, the adjudicator can consider the facts of the case to determine whether the defendant in fact committed a CMT, even though the offense constitutes a CMT under the categorical analysis, because to fail to allow this would result in an "over-inclusive" removal order where the noncitizen did not in fact commit a CMT. The adjudicator can consider whether the defendant stole something too insignificant to amount to moral turpitude, or whether the theft was justified by hunger, or poverty, to the extent that it cannot be said factually to involve moral turpitude.

The same should hold true for other types of offenses as well. For example, a fraud offense in which the loss was de minimis, or too small to be significant, should not be considered a CMT under the facts of the case, as when it is a joke like using a two-headed coin to settle a question. It would be necessary, of course, to meet the "realistic probability of prosecution" test, but that is met by showing that even one such case was actually prosecuted, so every noncitizen whose individual case is too minor to be considered sufficiently evil to amount to moral turpitude will automatically meet this test by showing the facts of his or her own case.

NATURE OF THE CONVICTION - ALFORD PLEA
Entry of a plea under North Carolina v. Alford, does not alter the immigration nature of the conviction, but it might make it easier for the court and prosecution to avoid insisting on making a record of the factual basis for the plea that would expand the nature of the conviction sufficiently to trigger a ground of deportation. Since an Alford plea is entered without any factual admission of guilt, the court and prosecution may allow entry of the plea without establishing any factual basis for the plea. If the court still wishes to establish a factual basis, it might be more inclined to accept defense counsel's specific disclaimer, "We are not admitting the truth of the facts contained in the police report, but simply allowing the court to review it to determine whether the prosecution could present some evidence of every element of the offense." This disclaimer should be sufficient to take the police report factual basis out of the record of conviction, since the defendant is expressly not admitting the truth of the facts contained therein.

DIVISIBLE STATUTE ANALYSIS - ADMISSIONS OF DEFENDANT - DEFENDANT CANNOT BE COMPELLED TO ADMIT FACTS BEYOND THE ELEMENTS OF THE OFFENSE AND NO ADVERSE INFERENCE CAN BE DRAWN FROM THE DEFENDANT'S SILENCE REGARDING THE OFFENSE
Mitchell v. United States, 526 U.S. 314, 325, 328-30 (1999) (defendant cannot be compelled to admit facts beyond the elements of the offense and no adverse inference can be drawn from the defendant's silence regarding the offense).