As will be discussed below, divisible statute analysis applies only where the statute in question:

 

1.      Can be divided into discrete subsections (e.g., California Penal Code § 136.1(a), (b) and (c)), and/or

 

2.      Contains more than one offense, separated by the disjunctive “or” (e.g., California Penal Code § 459, which punishes burglary with intent to commit “grand or petit larceny or any felony. . . .”).

 

These two situations are described, respectively, in § § 7.3 and 7.4, infra.  A special situation in which one offense is committed with intent to commit another (e.g., burglary with intent to commit theft) is discussed in § 7.5, infra.

 

            To apply a divisible statute analysis, it must also be true that (applying the minimum conduct rule) at least one set of elements necessarily triggers a ground of removal, while another set of elements does not.  Of course, a record of conviction must also exist to be examined.[1]

 

            Otherwise a statute should not be considered divisible, and should be subject to a straight categorical analysis, applying the minimum conduct test.  See § 7.6, infra, § § 6.2-6.6, supra.  This means that unless the statute is divisible, the court should not be allowed to look to the record of conviction to determine the nature of the offense.[2]

 

Arguably, a second level of analysis is required for certain grounds of removal, i.e., where the ground of removal itself requires proof of additional information not specifically tied to the elements of the conviction,[12] such as loss to the victim.[13]  However, this second level of analysis should also be confined to the information contained in the record of conviction.[14]  As this possible two-level analysis does not arise in the context of crimes of moral turpitude, it will not be further considered here.[15]

[16] United States v. Baza-Martinez, 464 F.3d 1010 (9th Cir. Sept. 26, 2006) (court of appeals was unable to undertake modified categorical analysis, because record in district court failed to include any documents from the court of conviction on which to base modified categorical analysis).

[17] Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989) (“Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted.”).

[12] See discussion in Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (stating in dictum that certain grounds of removal ‘invite’ inquiry into the ‘underlying facts’ of the case).

[13] See, e.g., INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (“loss to the victim or victims exceeds $10,000”).

[14] See Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (limiting examination of “loss to the victim” for purposes of INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) to the record of conviction); Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (same).

[15] See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 16.7 (4th Ed. 2007).

Fifth Circuit

CATEGORICAL ANALYSIS - DIVISIBLE STATUTE ANALYSIS
Patel v. Mukasey, 526 F.3d 800 (5th Cir. Apr. 29, 2008) (BIA erred in looking to record of conviction to determine the underlying felony in a conviction for misprision of a felony, since the statute at issue, 8 U.S.C. 4, does not include any discrete subsections or disjunctive terms).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " BURGLARY
Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. Aug. 22, 2014) (California conviction of burglary, in violation of Penal Code 459 [entry with intent to commit larceny or any felony], did not constitute a divisible statute, under Descamps; the presence of an or between grand or petit larceny and any felony does not render the statute divisible, because the intended offense, under this statute, is not an element of the offense, but a means of commission, since California law does not require jury unanimity on this point; BIA's use of the modified categorical approach was impermissible); citing People v. Failla, 414 P.2d 39, 44-45 (1966); distinguishing Ngaeth v. Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam) (decided prior to Descamps); Hernandez"Cruz v. Holder, 651 F.3d 1094, 1104"05 (9th Cir. 2011) (same). NOTE: The court states: To be clear, it is black-letter law that a statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means. Id. at 2285. Thus, when a court encounters a statute that is written in the disjunctive (that is, with an or), that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.

NATURE OF CONVICTION " DIVISIBILITY " OFFENSE LEVEL DEPENDENT UPON ELEMENTS
United States v. Cisneros, ___ F.3d ___ 2014 WL 4067214 (9th Cir. Aug. 19, 2014) (Oregon conviction for fleeing or attempting to elude police officers under ORS 811.540(1), is divisible for purposes of the ACCA, since the offense is a misdemeanor if the defendant fled on foot, but a felony if he fled by car).

CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " CONTROLLED SUBSTANCES
Coronado v. Holder, ___ F.3d ___, 2014 WL 3537027 (9th Cir. Jul. 18, 2014) (Superseding amended opinion) (California offense of possession of a controlled substance, in violation of Health & Safety Code 11377(a), is a divisible statute, since some substances are federally listed and trigger deportation and removal, and others are not, so inadmissibility under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II) must be assessed under the modified categorical analysis); Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) (stating that the modified categorical approach applies only to prior convictions under a divisible statute, one that sets out one or more elements of the offense in the alternative).

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS
Young v. Holder, 697 F.3d 976, *983 (9th Cir. Sept. 17, 2012) (en banc) (When, as here, the state statute of conviction criminalizes a broader range of conduct than the generic federal crime, we employ the modified categorical approach, which requires us to determine whether a jury was actually required to find all the elements of the generic federal crime. Aguila"Montes de Oca, 655 F.3d at 920 (internal quotation marks omitted). When applying the modified categorical approach in the context of a guilty plea, we must determine whether a guilty plea to an offense defined by a nongeneric statute necessarily admitted elements of the generic offense. Id. at 921 (emphasis added) (internal quotation marks omitted).).

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS
United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. Aug. 11, 2011) (en banc) (modified categorical analysis applies even [w]hen the crime of conviction is missing an element of the generic crime altogether.); overruling Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc).

Other

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS MAY BE USED MORE OFTEN IN THE NINTH CIRCUIT
Some situations where Aguila-Montes may change prior law include: (1) Estrada-Espinoza consensual sex rules. California Penal Code 261.5(c) shouldn't change because there is only a 3-year age difference, but the result may change for other cases where the record of conviction shows a 4-year age difference between the victim who is under 16 and the perpetrator and there is knowing conduct. (2) Any sexual abuse offense which is age-neutral. Where the record of conviction shows that the victim is a minor would be an aggravated felony (e.g., California Penal Code 243.4(a) sexual battery) (3) Any age-neutral statute involving intentional abusive conduct or negligent abusive conduct used to avoid a crime of child abuse, where the record of conviction shows that the victim is a minor would be a deportable crime of child abuse. (4) Any firearm-neutral statute where a gun is involved would be a deportable firearms offense if, and but only if, it showed a violation of any law related to the elements of the firearm deportation ground. (5) Any crime of violence statute without a domestic element where a domestic element is shown is a deportable crime of domestic violence. (6) Any assaultive crime involving actual violent force where the record of conviction shows a domestic relation may now be considered crime of moral turpitude.