Crimes of Moral Turpitude

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).