The essential elements of the statute of conviction must be examined in order to determine whether the conviction will trigger removal as a crime of moral turpitude.[56]  The elements of a statute are determined by the statute of conviction, as modified by any judicial decisions defining those elements.[57]

 

            The conviction cannot trigger removal unless the minimum conduct sufficient to satisfy the elements of the statute defining the offense falls entirely within the elements of the relevant ground of removal.[58]

 

            Analysis of crimes of moral turpitude can be somewhat more difficult than other grounds of removal since there is no clear statutory definition of moral turpitude.[59]  Rather, counsel must generally compare the conviction against the moral turpitude definition as described in Chapter 8, infra, and compare the criminal statute at issue to other criminal statutes for which a court has already made a moral turpitude definition.  See Chapter 9, and Appendix A, infra for a discussion and chart of specific CMT cases.

 

            Where a statute punishes more than one offense (i.e., contains more that one set of elements), and only some of those offenses involve moral turpitude, the record of conviction[60] may be consulted to determine the exact set of elements that were required to be proven to convict.  This is known as divisible statute analysis.[6]  No resort should be had to the record of conviction unless the statute is divisible.[7] 

 

[61] Matter of LVC, 22 I. & N. Dec. 594 (BIA 1999) (en banc); Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995), cert. denied, 117 S.Ct. 105 (1996); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of Pataki, 15 I. & N. Dec. 324, 325 (BIA 1975) (“The presence or absence of moral turpitude must be determined in the first instance from consideration of the crime as defined by the statute.”).

[62] See § 6.5, infra.

[56] See § 6.6, infra.

[57] Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068 (9th Cir. Sept. 19, 2007).  Indeed, the dissent in that case suggested that the categorical analysis should not be applied at all in the CMT context.  Id. at 1067 n.4, 1086.

[58] See § § 7.10-7.12, infra.

[59] See § § 7.1-7.9, infra.

[60] See § 7.6, infra.

CATEGORICAL ANALYSIS " ELEMENT " DEFINITION
Alleyne v. United States, __ S.Ct. __ (2013) (any fact that increases the mandatory minimum is an "element" that must be submitted to the jury, rather than the judge).

BIA

CATEGORICAL ANLAYSIS - BURDEN OF PROOF - FACT REQUIRED TO BE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE IS NOT SUFFICIENTLY SHOWN BY RECORD OF CONVICTION THAT NEED BE SHOWN ONLY BY A PREPONDERANCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington restitution order, contained in judgment, indicating that the respondent owed no restitution to his "child victim" did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. Specifically, in Washington the facts upon which a restitution award may be based need only have been proven to the judge by a preponderance of the evidence. State v. Dennis, 6 P.3d 1173, 1175 (Wash. Ct. App. 2000). As a result, they do not constitute proof of the defendant's "convicted conduct," which must have been proven beyond a reasonable doubt or admitted as part of a plea.").

CRIMES OF MORAL TURPITUDE " EVIDENCE OUTSIDE RECORD OF CONVICTION ALLOWED ONLY WHERE CONVICTION RECORD ITSELF DOES NOT CONCLUSIVELY DEMONSTRATE WHETHER OR NOT THE CONVICTION WAS A CMT
Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465 (BIA 2011) (immigration court may consider evidence outside record of conviction in determining whether a conviction constitutes a crime involving moral turpitude only where the conviction record itself does not conclusively demonstrate whether the alien was convicted of engaging in conduct that constitutes a crime involving moral turpitude); clarifying Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).

Second Circuit

CATEGORICAL ANALYSIS - EXTRA ELEMENT
Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) (federal conviction of violating and conspiring to violate 18 U.S.C. 2422(a), enticing individuals to travel in interstate or foreign commerce to engage in prostitution, did not constitute an aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C. 1101(a)(43)(K)(ii) ("an offense that ... is described in section 2421, 2422 or 2423 of Title 18 ... if committed for commercial advantage"); BIA departed, with insufficient reason, from Second Circuit analysis long used to decide whether a noncitizen has been convicted of an aggravated felony; and it was unclear what result the BIA would reach under the proper framework).

Ninth Circuit

CONVICTION -- NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS " PLEA TO LESSER INCLUDED OFFENSE IDENTIFIED BY COUNT INCORPORATES MATTERS ALLEGED IN THE GREATER OFFENSE CHARGED IN THAT COUNT
Ruiz-Vidal v. Lynch, 803 F.3d 1049 (9th Cir. Oct. 9, 2015) (immigration court could look to originally charged count to identify controlled substance where noncitizen pleaded guilty to a lesser included offense; Ruiz"Vidal's plea"which references a specific count in the Information"and the Information, which references a specific controlled substance, provide clear and convincing evidence that Ruiz"Vidal was convicted of a removable offense.). NOTE: This case does not necessarily apply to all pleas to lesser included offenses. In making this holding, based on the concept of lesser included offense, the Court notes: [b]ecause possession of each different drug under California Health and Safety Code 11377(a) constitutes an entirely separate offense, Coronado, 759 F.3d at 985, the indictment charged him with the specific offense of sale of methamphetamine, not sale of a controlled substance. A conviction for possession of any other drug couldn't be a lesser included offense to sale of methamphetamine. The only way a conviction for possession of a controlled substance can be a lesser included offense to the crime of sale of methamphetamine is if the drug the defendant is convicted of possessing is methamphetamine. Hence, so long as there is clear and convincing evidence that Ruiz"Vidal's crime of conviction was a lesser included offense to Count 1, we can conclude he was convicted of possessing methamphetamine. The court distinguishes Cisneros"Perez v. Gonzales, 465 F.3d 386 (9th Cir.2006) (as amended), on the basis that the judgment record didn't establish that Cisneros"Perez necessarily pleaded no contest to the allegations in the original complaint because [i]t is not stated in any of the cognizable documents that the conviction for violating [the lesser included offense] stems from the same incident as the charges in the criminal complaint. Id. at 393 (emphasis added). Judge Reinhardt wrote a strong dissent.

PRACTICE ADVISORY " CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " RECORD OF CONVICTION " LESSER INCLUDED OFFENSES " CALIFORNIA
The Ninth Circuit held that because a lesser included charge must be one that is necessarily included in the charged offense, the lesser-included possession offense must have been possession of the same substance charged in the dismissed count charging the greater offense. In dissent, Judge Reinhardt argued the Ninth should stay out of messy questions about what is and is not a lesser-included offense: The complexity and uncertainty of that task is well illustrated here. Although Petitioner pled no contest to the lesser included offense to sale of a controlled substance, the offense to which he pled no contest " possession of a controlled substance " is not a lesser included offense to the crime charged " sale of a controlled substance " under at least one of the tests used by California courts. Under Californias elements test, possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell . . . because the former crime contains elements a sales offense does not: knowing possession of a usable quantity. People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316 (Cal. Ct. App. 1994); see also Judicial Council of California Criminal Jury Instructions, 1 CALCRIM No. 2300 (2015). Moreover, under that test the particular drug alleged in the information is not relevant to determining a lesser included offense. See People v. Sosa, 148 Cal. Rptr. 3d 826, 828"29 (Cal. Ct. App. 2012). Under the accusatory pleading test, the specific language of the accusatory pleading must include all of the elements of the lesser offense. People v. Moses, 50 Cal. Rptr. 2d 665, 668 (Cal. Ct. App. 1996). In this case, the first count in the accusatory pleading " the count to which Petitioner pled no contest to the lesser included offense " does not include any specific language concerning possession of methamphetamine; it merely repeats the language in the sale statute. There is an excess clause as to count one including the allegation that Petitioner possessed for sale/sold . . . methamphetamine, but that allegation could be satisfied by Petitioner selling methamphetamine without possessing it for sale. In short, rather than clear, unequivocal, and convincing evidence that Petitioner pled no contest to possession of methamphetamine, the record in this case reveals ambiguity and confusion regarding the meaning of Petitioners plea to a lesser included offense. Ruiz-Vidal v. Holder, ___ F.3d ___, ___ (9th Cir. 2015) (Reinhardt, J. dissenting). A petition for rehearing is in preparation.

Eleventh Circuit

CRIMES OF MORAL TURPITUDE " CATEGORICAL ANALYSIS " SILVA-TREVINO REJECTED
Sanchez Fajardo v. Atty Gen., 659 F.3d 1303 (11th Cir. Oct. 12, 2011) (rejecting the framework for determining whether a crime involves moral turpitude announced in Matter of Silva-Trevio, 24 I&N Dec. 687 (A.G. 2008)).

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).