Criminal Defense of Immigrants
§ 16.20 2. Application
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The key purpose of divisible statute analysis is always to determine which set of elements constitutes the offense of which the noncitizen was convicted:
 See United States v. Calderon-Pena, 339 F.3d 320, 239 (5th Cir. 2003) (en banc) (looking to the record of conviction “for the limited purpose of determining which of a series of disjunctive elements a defendant’s conviction satisfies.”).
CONVICTION " MODIFIED CATEGORICAL ANALYSIS " FACTS VS ELEMENTS
Flores v. Holder, ___ F.3d ___, ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (BIA erred by consulting the record of conviction to determine that Flores's underlying conduct"the touching of his hand to the genital area of th[e] victim"satisfied the generic definition of sexual abuse of a minor under 18 U.S.C. 3509(a). . . . The agency was instead required to consider whether the minimum conduct necessary to violate N.Y. Penal Law 130.65(3) was encompassed within 18 U.S.C. 3509(a)'s definition of sexual abuse.); see Ming Lam Sui v. INS, 250 F.3d 105, 117"18 (2d Cir. 2001) (noting that reviewing court cannot go behind the offense as it was charged to reach [its] own determination as to whether the underlying facts amount to one of the enumerated crimes (internal quotation marks omitted)). The court noted: This error was not harmless because N.Y. Penal Law 130.65 criminalizes sexual contact, and we have observed that it is by no means clear that admitting to sexual contact with a minor under New York law would be enough to establish sexual abuse of a minor under the INA. James, 522 F.3d at 258 (emphasis in original). Accordingly, we vacate the agency's aggravated felony determination and remand for proper application of the modified categorical approach. See Gonzales v. Thomas, 547 U.S. 183, 186"87, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam) (observing that agency should be given opportunity, in first instance, to make legal determinations entrusted to it by Congress). (Id. at ___.)
CONVICTION " NATURE OF CONVICTION
United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. Sept. 13, 2011) (in using the modified categorical analysis to determine whether a state conviction falls within a generic federal definition of a conviction, the court cannot consider a post-conviction, independent examination of the facts forming the basis of a prior conviction; Taylor requires the avoidance of subsequent evidentiary enquiries into the factual basis for the earlier conviction.).
RECORD OF CONVICTION - FACTS VS. ELEMENTS
United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. Apr. 28, 2008) (where California Penal Code 459 does not require proof beyond a reasonable doubt that the burglary arose from an "unlawful" entry into a building, the "unlawful" language in the charging document is not an element of the offense, but rather a fact that the defendant has admitted to in taking the plea; because this fact was specifically admitted by the defendant at plea, it may be used as part of the record of conviction under the modified categorical analysis to determine that the defendant admitted committing a "generic" burglary offense by making an "unlawful" entry).
Lower Courts of Ninth Circuit
CONVICTION " NATURE OF CONVICTION -- MODIFIED CATEGORICAL ANALYSIS " RECORD OF CONVICTION " FACTUAL BASIS FOR PLEA
United States v. Sahagun-Gallegos, ___ F.3d ___, ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (When conducting the modified categorical approach, we may not examine a transcript to try to discern what ... a plea proceeding revealed[ ] about the defendant's underlying conduct. Descamps, 133 S.Ct. at 2288. Rather, we are limited to assessing whether the defendant necessarily admitted the elements of the particular statutory alternative that is a categorical match to the generic federal offense. See id. at 2284 (quoting Shepard, 544 U.S. at 26, 125 S.Ct. 1254).).