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,[1] 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.[2]  If a conviction under one set of elements would, in all cases, be considered a crime of moral turpitude, 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.[3]  In some limited cases, immigration authorities may be permitted to look beyond the record of conviction seeking factors to bring a conviction within a removal ground.  See § 6.2(B), supra.

 

            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.[4]  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 § § 7.2-7.15, 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.[5]

 

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.[6] 

 

            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[7] 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.[8]  The Seventh Circuit, on the other hand, distinguished 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.[9]  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.”[10] 

 

            Although essentially applying the same analysis, the differing terminology and methods often result in confusion and misunderstanding.  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.[11] 

[1] See § § 6.1-6.6, supra.

[2] 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).

[3] 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).

[4] 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).

[5] 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)).

[6] See § § 6.2-6.6, supra.

[7] 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).

[8] 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).

[9] 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).  This analysis may have changed in the Seventh Circuit.  See § 6.2(B), supra.

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

[11] Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006).  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 16.7(A) (4th Ed. 2007).

Second Circuit

CATEGORICAL AND MODIFIED CATEGORICAL APPROACH - SECOND CIRCUIT RULE
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.")

Eighth Circuit

NATURE OF CONVICTION - CATEGORICAL APPROACH - 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

CONVICTION " NATURE OF CONVICTION " DIVISIBLE STATUTE " DEFINITION
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.).

ARTICLE " NINTH CIRCUIT EN BANC CASE ON CATEGORICAL ANALYSIS
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.

Other

CATEGORICAL ANALYSIS - CRIME OF MORAL TURPITUDE
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (Moral turpitude is an "extra-element" allowing the courts to examine the underlying facts of the conviction in order to made a moral turpitude determination).

In short, the Attorney General has abandoned the categorical analysis in favor of a fact-based examination, rejecting Taylor, Shepard, and all prior categorical analysis case law in the CMT context. There is no longer any limit to the statute of conviction or minimum conduct. The IJ can look directly to the underlying facts whenever s/he feels it necessary to do so.

The categorical analysis survives only as an "evidentiary hierarchy," to ease the administrative burden of the immigration courts and the DHS. The new rule can be phrased as, "if at first its not a CMT, try, try again."

Step 1 (from Duenas-Alvarez, 549 U.S. 183 (2007)): Look at the statute, if the statute is categorically a CMT the conviction is a CMT. The Attorney General applies Duenas language regarding "reasonable probability of prosecution," as a requirement that the noncitizen prove that the statute of conviction is not categorically a CMT by pointing to the facts of his own case or a prior published decision. If there isnt a case out that punishes a non-CMT under the statute, then the conviction is categorically a CMT.

Step 2 (from Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006)): "Modified categorical approach" no longer means looking to determine the elements of conviction in case of a divisible statute. The term now means looking to any facts in the record of conviction to determine whether the offense was in fact a CMT.

Step 3 (from Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008)): The Attorney General sees no justification for being limited to the record of conviction. If it cannot be determined that the conviction was a CMT by looking to the facts in the record of conviction, the immigration authorities can look at any and all underlying facts and subsequent testimony if the immigration judge decides it is necessary to do so.

While the noncitizen cannot dispute any facts found by the judge/jury or elements necessary for conviction, the DHS not limited by the elements of conviction in any way.

The minimum conduct punishable under the Texas Statute at issue in Silva-Trevino included where a 20 year old consensually feeling the breast of a girl 1-day shy of 18 years old, though clothing, while (mistakenly) believing she was over 18 years old. The conviction record reflected only the basic language of the statute. Nevertheless, the Attorney General remanded the case back to the BIA to determine whether the actor, in fact, knew or had reason to believe that the victim was under the age of 18.

The Attorney General was explicit in stating his view that Brand-X allows this decision to overrule all prior inconsistent case law from the Circuit Courts.

See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments in opposition to this terrible decision. This decision abruptly changes nearly 100 years of CMT law, and should be attacked.