The key purpose of divisible statute analysis is always to determine which set of elements[93] constitutes the offense of which the noncitizen was convicted.[2]  In doing so, the courts are not only limited to the documents that make up the record of conviction, but are also limited in the type of information that can be gleaned from those documents.  While the record of conviction can be considered to determine the set of elements of which the noncitizen was found guilty, the courts generally should not consider any facts contained in those documents that do not speak to that question.[3] 

For example, a conviction under California Penal Code § 243.4, punishing sexual battery through intimate touching and for the purpose of sexual arousal, gratification or abuse, should never be considered an aggravated felony sexual abuse of a minor.[4]  Although the statute is arguably divisible on the question of whether the conviction involved abuse, whether the actual offense was committed against a minor is completely irrelevant in determining culpability of this offense.  Even if the charging document indicated that the defendant “touched the breast of Jane Doe, a 17-year-old girl, for the purpose of sexual abuse,” the fact of the victim’s age does not go to the question of which of all possible sets of elements under the divisible statute formed the basis of the conviction.[5]

 

An element is something that must have been shown, beyond a reasonable doubt, to support the conviction.[94]  If the conviction can be sustained without proof of a given fact, then that fact is superfluous, and is not an essential element of the offense, and therefore should not be considered in determining the nature of the conviction.[7]  

[95] Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 388 (BIA Dec. 13, 2007) (en banc) ("A criminal “offense” is defined by its “elements,” Schmuck v. United States, 489 U.S. 705, 716-17 (1989), with “elements” being understood as facts that must be proven to a jury beyond a reasonable doubt in order to convict. In re Winship, 397 U.S. 358, 364 (1970).").

[96] 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.”). 

[97] See United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. Oct. 31, 2006) (in determining whether an offense triggers a ground of removal, no reference may be made to the facts alleged in an indictment or information; analysis is limited to the set of statutory elements of which the noncitizen was found guilty); United States v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. Sept. 21, 2004) (per curiam) (“Even accepting the government’s proposition that the court may look at the indictment pursuant to the exception, we cannot use the fact that the offense involved the use of force to conclude that force is an element of the statute. Thus, given the plain meaning of the statute and the purported disjunctive elements, the use, attempted use, or threatened use of physical force is simply not an element of the Texas retaliation statute.”), following United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc); Manzella v. Zimmerman, 71 F.Supp. 534 (E.D. Pa. 1947) (the common-law crime of escape did not constitute a crime involving moral turpitude, since it was committed by a prisoner when he voluntarily departed from lawful custody without breach of prison, since the offense involved no element of force or fraud, even though the indictment alleged that the offender did break prison and escape “with force and arms.”).  Cf. Rusz v. Ashcroft, 376 F.3d 1182, 1185 (9th Cir. 2004) (“In Corona-Sanchez, the defendant ‘actually received a two-year sentence for [recidivist shoplifting] due to the application of California Penal Code § 666.’  Because the categorical approach required us to separate the recidivist enhancement, the Corona-Sanchez defendant’s actual two-year sentence was of no moment.  Thus, we concluded that ‘even under the § § 484/488/666 scheme ... the maximum possible sentence for [petty theft with a prior qualifying offense] ... is six months.’”) (internal citations omitted).

[98] See, e.g., Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (Delaware conviction of unlawful sexual contact in the third degree under Del. C. § 767, penalizing “sexual contact with another person [with knowledge] that the contact is either offensive to the victim or occurs without the victim’s consent,” does not constitute aggravated felony sexual abuse of a minor because the age of the victim is irrelevant under the statute).

[99] But see Sharashidze v. Gonzales, 480 F.3d 566, (7th Cir. Mar. 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 [“offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification],” constituted a divisible statute with respect to the age of the victim for purposes of considering whether conviction constituted sexual abuse of a minor aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), because the offense in fact involved a minor). 

[93] Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 456 (BIA Dec. 19, 2007).  See also Matter of Aruna, 24 I. & N. Dec. 452 (BIA Feb. 26, 2008) (distinguishing between facts necessary to convict and facts necessary for sentencing; “[T]he categorical approach is concerned only with the facts that a jury must have decided beyond a reasonable doubt.”).  But see Conteh v. Gonzales, 641 F.3d 45 (1st Cir. 2006) (allowing examination of facts beyond those needed to be proven beyond a reasonable doubt in some cases).

[94] United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc); Matter of Lethbridge, 11 I. & N. Dec. 444, 445 (BIA 1965) (conviction under that portion of 18 U.S.C. § 474 which makes it a crime to possess securities made after the similitude of United States securities intending to sell and use them, is not a conviction of a crime involving moral turpitude: “Language in the indictment charging knowledge of the counterfeit nature of the securities is not found in 18 U.S.C. § 474 and would therefore appear to be surplusage”); Matter of B, 6 I. & N. Dec. 98 (BIA 1954) (conspiracy to violate New York Banking Law § § 340, 357 is not a CMT, since those sections are merely regulatory enactment; statement in the conspiracy count relating to intimidation and threats was immaterial since it was surplusage and not necessary for conspiracy conviction).  But see Conteh v. Gonzales, 641 F.3d 45 (1st Cir. 2006) (allowing examination of facts beyond those needed to be proven beyond a reasonable doubt in some cases).

CONVICTION " NATURE OF CONVICTION -- CATEGORICAL ANALYSIS " ELEMENTS " TEST FOR ELEMENTS VERSUS MEANS
Schaud v. Arizona. 501 U.S. 624, 632-33 (1991) (plurality opinion) (when a criminal statute provides alternative routes to a conviction, whether jurors must be unanimous with respect to a particular route depends on the answers to two questions: First, did the legislature intend to create different offenses or different means for violating a single offense? Second, if the legislature intended to create different means for violating the same offense, is that statutory definition constitutional under the Due Process Clause?). Note: The Third Circuit elaborated on the Schaud framework in United States v. Edmonds, 80 F.3d 810 (3d Cir. 1996) (en banc). Thanks to Dan Kesselbrenner. This helpful distinction is made also by the Fourth Circuit in the Royal decision, not an immigration case, but citing Descamps, 133 S. Ct. at 2285 (Rather than alternative elements, then, offensive physical contact and physical harm are merely alternative means of satisfying a single element of the Maryland offense. Consequently, because [t]he dispute here does not concern any list of alternative elements, the modified approach "has no role to play."). This rule should apply in immigration cases as well.

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS
Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276 (June 20, 2013) (the modified categorical approach does not authorize a fact-based inquiry; court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the conviction.).

BIA

CATEGORICAL ANALYSIS - CONTROLLED SUBSTANCES - 30 GRAMS OF MARIJUANA EXCEPTIONS
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118 (BIA Nov. 4, 2009) (respondent may look to the specific facts of the underlying conviction to determine the amount of marijuana involved to prove, by a preponderance of the evidence, that the offense fits within the "less than 30 grams of marijuana" exception for purposes of a seeking a waiver under INA 212(h)), citing Nijhawan v. Holder, 129 S. Ct. 2294, 2298 (2009).

"We think it unlikely that Congress intended to make an aliens eligibility for a waiver dependent on such an arbitrary factor as whether the convicting jurisdiction treated drug quantity as an element. Furthermore, section 212(h) requires only that an applicants inadmissibility "relate[] to" its object of reference, namely, "a single offense of simple possession of 30 grams or less of marijuana." Given the narrow specificity of that object, it is hard to imagine any offenseapart from a few inchoate offensesthat could "relate to" it categorically without actually being a simple marijuana possession offense. Had Congress wished to make waivers available only to aliens who had committed simple marijuana possession, using a broad expression like "relates to" would have been an unlikely choice of words. Thus, we conclude that Congress envisioned something broader, specifically, a factual inquiry into whether an aliens criminal conduct bore such a close relationship to the simple possession of a minimal quantity of marijuana that it should be treated with the same degree of forbearance under the immigration laws as the simple possession offense itself."

RECORD OF CONVICTION - ALFORD PLEA - PROSECUTION STATEMENT OF FACTS AS FACTUAL BASIS DOES NOT CONSTITUTE PART OF RECORD OF CONVICTION WHERE DEFENDANT DOES NOT ADMIT THEIR TRUTH
Matter of Dennis, A041-468-793 (BIA Aug. 25, 2008) (unpublished) ("BIA affirms the decision of an Immigration Judge holding that a recitation of facts by a criminal prosecutor during a plea hearing cannot be considered as part of the modified categorical approach if the defendant pleads guilty under the Alford doctrine and thus does not confirm the truthfulness of the facts during the plea hearing."), siting North Carolina v. Alford, 400 U.S. 25 (1970). http://bibdaily.com/pdfs/BIAu%208-25-08%20Dennis.pdf

STATUTORY INTERPRETATION - RULE OF SUPERFLUITIES
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Pauley, Boardmember, concurring) ("Indeed, it appears that crimes of child neglect or abandonment are a subset of "child abuse" and, although technically redundant, were likely inserted by Congress to assure coverage of such crimes, however denominated by the State. See Ali v. Federal Bureau of Prisons, 128 S. Ct. 831 (2008) (discussing the rule of superfluities in the context of Congress's inclusion of reference to certain specific types of law enforcement officers, along with the all-encompassing language "any other" such officer).")

Second Circuit

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 ___.)

Third Circuit

CATEGORICAL ANALYSIS - RATIONAL FOR IGNORING THE FACTS
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) ("The Courts of Appeals have transplanted that categorical approach into the INA because of obvious similarities between the two inquiries. The plain language of the INA, like 924(e), mandates that the alien was "convicted" of the prior offense designated in the INA as an "aggravated felony." It is not sufficient for the BIA to independently conclude that the alien "has committed" that prior offense. Therefore, the INA, like 924(e), requires a comparison of the prior conviction to the generic definition of the pertinent aggravated felony - in this case, 1101(a)(43)(M)(i) and (U). The rationale is not just a textual one, however. Courts have adopted categorical approaches for the INA also because the INA inquiry involves the same sorts of practical difficulties and fairness concerns underlying the Supreme Courts decisions in Taylor and Shepard. As the Second Circuit explained, "the BIA and reviewing courts are ill-suited to readjudicate the basis of prior criminal convictions." Dulal-Whiteway, 501 F.3d at 132. See also id. ("we decline the invitation to piece together an underlying attempt conviction by weighing evidence and drawing conclusions in a manner appropriate only for a criminal jury") (quoting Sui v. I.N.S., 250 F.3d 105, 119 (2nd Cir. 2001)); Shepard, 544 U.S. at 23 (a purpose of the categorical approach is the "avoidance of collateral trials"). As the Second Circuit also recognized, the categorical approach promotes basic precepts of fairness. Id. at 133 ("[I]f the guilty plea to a lesser, [non-removable] offense was the result of a plea bargain, it would seem unfair to [order removal] as if the defendant had pleaded guilty to [a removable offense]. [Taylor, 495 U.S.] at 601-02. By permitting the BIA to remove only those aliens who have actually or necessarily pleaded to the elements of a removable offense, our holding promotes the fair exercise of the removal power").")(Stapleton, J, dissenting).

Fifth Circuit

CATEGORICAL ANALYSIS - NON-ELEMENTS IN CHARGING DOCUMENT ARE SURPLUSAGE
United States v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. May 22, 2008) (court may not look to language in charge, that defendant committed burglary "willfully and unlawfully" to determine whether the California burglary conviction fits within they Taylor generic definition of burglary where an "unlawful" entry into the building is not an element of the crime of conviction; because the California burglary statute is not divisible, there was no need to look to the record of conviction), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007).

NATURE OF OFFENSE - CATEGORICAL ANALYSIS - LIMITATION TO RECORD OF CONVICTION -- RATIONALE
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) ("The purpose of the categorical approach is to avoid "the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind prior convictions .... [which] would potentially require federal courts to relitigate a defendant's prior conviction in any case where the government alleged that the defendant's actual conduct fit the definition of a predicate offense."), quoting Larin-Ullo v. Gonzales, 462 F.3d 456, 463 (5th Cir.2006), citing Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

NATURE OF OFFENSE - CATEGORICAL ANALYSIS - LIMITATION TO RECORD OF CONVICTION -- RATIONALE
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) ("The purpose of the categorical approach is to avoid "the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind prior convictions .... [which] would potentially require federal courts to relitigate a defendant's prior conviction in any case where the government alleged that the defendant's actual conduct fit the definition of a predicate offense."), quoting Larin-Ullo v. Gonzales, 462 F.3d 456, 463 (5th Cir.2006), citing Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Sixth Circuit

CATEGORICAL ANALYSIS " RATIONAL FOR IGNORING FACTS
United States v. McMurray, 653 F.3d 367 (6th Cir. Aug 4, 2011) (It makes no difference that everyone understood McMurray's plea as relating to the facts alleged by the state at the plea hearing. See Savage, 542 F.3d at 967. The Court in Shepard rejected the argument that a defendant's plea necessarily rested on particular facts because those facts are the only ones in the record underlying the charges and the defendant never explicitly disputed them. See Shepard, 544 U.S. at 19, 21"22; Medina"Almaguer, 559 F.3d at 425 (stating, in explaining Shepard, that [w]hat mattered was not how likely it was that Shepard had pleaded guilty to burglarizing buildings (or how unlikely it was that he had pleaded guilty to burglarizing ship[s], vessel[s] or vehicle[s]), but whether the government could produce evidence showing that Shepard necessarily admitted to breaking into buildings when he entered his pleas). We must consider only the facts necessarily admitted by the defendant in pleading guilty even if we are forced to feign agnosticism about clearly knowable facts. Shepard, 544 U.S. at 34"35 (O'Connor, J., dissenting).).

NATURE OF OFFENSE - MODIFIED CATEGORICAL ANALYSIS - SIXTH CIRCUIT TEST
United States v. Medina-Almaguer, 559 F.3d 420 (6th Cir. Mar. 12, 2009) ("In the context of a conviction stemming from a guilty plea-as Medina-Almaguer's predeportation conviction did-the question is whether the court documents establish that the defendant "necessarily admitted" the elements of a predicate offense through his plea. Id. at 16; see also id. at 20-21, 26; cf. Taylor, 495 U.S. at 602. For that purpose, a sentencing court generally may consider the charging document, a written plea agreement, a plea-colloquy transcript in which the defendant confirmed the factual basis for the plea or some other "comparable judicial record," Shepard, 544 at 26, so long as they establish what the defendant "necessarily admitted," id. at 16. Otherwise, the sentencing court must stand by the fact of conviction and the definition of the offense-whether they establish the nature of the prior conviction or not. See, e.g., United States v. McGrattan, 504 F.3d 608, 615-616 (6th Cir.2007); United States v. Bernal-Aveja, 414 F.3d 625, 627-28 (6th Cir.2005).").

Seventh Circuit

CATEGORICAL ANALYSIS " FACTS V. ELEMENTS " MODIFIED CATEGORICAL ANALYSIS
Rosario v. Holder, 655 F.3d 739 (7th Cir. Aug. 24, 2011) (The modified categorical approach does not permit examination of the charging instrument and plea agreement for the purpose of learning the specific facts of a specific conspiracy, such as the fact that this specific conspiracy involved a prostitution business, or what the defendant's specific role was in aiding and abetting that conspiracy.).

Ninth Circuit

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS OF A DIVISIBLE STATUTE
Almanza-Arenas v. Holder, ___ F.3d ___, ___ (9th Cir. Nov. 10, 2014) (Where the petitioner was convicted under a divisible statute, we apply the modified categorical approach to determine which alternative element in a divisible statute formed the basis of the defendants conviction. Descamps, 133 S. Ct. at 2293. This inquiry is legal, not factual, because the [Immigration and Nationality Act] asks what offense the noncitizen was convicted of, . . . not what acts he committed. Moncrieffe v. Holder, 133 S. Ct. 1678, 1685 (2013) (internal citations omitted).).

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " AFFIRMATIVE DEFENSE
United States v. Hernandez, 769 F.3d 1059 (9th Cir. Oct. 20, 2014) (per curiam) (California conviction for being a felon in possession of a firearm under California Penal Code 12021(a)(1), did not categorically qualify as a listed firearms aggravated felony, under INA 101(a)(43)(E), 8 U.S.C. 101(a)(43)(E), and is therefore insufficient to support an illegal reentry sentence enhancement, under U.S.S.G. 2L1.2(b)(1)(C), because the state statute swept more broadly than the federal aggravated felony definition, since the state did not have an exception for antique firearms, as federal law did, though the federal exception was an affirmative defense to the federal offense); see Moncrieffe v. Holder, 133 S.Ct. 1678 (April 23, 2013), retroactively overruling Gil v. Holder, 651 F.3d 1000, 1005"06 (9th Cir.2011)(holding that the antique firearms exception is an affirmative defense that need not be considered in a categorical analysis); Aguilera"Rios v. Holder, 769 F.3d 626, 633, 2014 WL 4800292 (9th Cir. Sept. 29, 2014) (California Penal Code 12021(a)(1) is not a categorical match to 18 U.S.C. 921, 922).

CONVICTION -- NATURE OF CONVICTION " FACTS VS ELEMENTS " PLEA OF GUILTY CONTROLS
United States v. Avery, 719 F.3d 1080, 1084 (9th Cir. Jun. 18, 2013) (As we have stated in other contexts, plea agreements are contracts, and are premised on the notion that the negotiated guilty plea represents a bargained-for quid pro quo. United States v. Escamilla, 975 F.2d 568, 571 (9th Cir.1992) (internal quotation marks omitted).; language in information cannot be counted against defendant if the language is unrelated to the plea; [i]n enforcing a plea agreement, we are bound to construe any ambiguities or inconsistencies in favor of the defendant, ordinarily placing on the government responsibility for any lack of clarity. United States v. Franco"Lopez, 312 F.3d 984, 989 (9th Cir.2002) (internal citations and quotation marks omitted). The government cannot seize upon convenient language contained in the information to substantiate a broader charge that was not incorporated into the plea agreement . . .).

CATEGORICAL ANLAYSIS " RECORD OF CONVICTION " PLEA AGREEMENT
United States v. Cabrera-Gutierrez, ___ F.3d ___, 2013 WL 2378574 (9th Cir. Jun. 3, 2013) (Oregon conviction for violation of ORS 163.425, second degree sexual abuse, was a crime of sexual abuse for federal sex offender registry purposes where the plea agreement indicated that the victim was unable to consent due to intoxication). NOTE: This case was published prior to Descamps v. United States, __ U.S. __ (Jun. 20, 2013).

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " FACTS IN COMPLAINT
Cabantac v. Holder, 693 F.3d 825 (9th Cir. Aug. 23, 2012) (We hold that where, as here, the abstract of judgment or minute order specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment, we can consider the facts alleged in that count.).

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.).

NATURE OF OFFENSE - CATEGORICAL ANALYSIS - COURT CANNOT GO OUTSIDE THE ELEMENTS OF THE OFFENSE OF CONVICTION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (in evaluating the nature of the offense of conviction under the categorical analysis for removal purposes, the court cannot go outside the elements of the offense of 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).

CONVICTION - NATURE OF CONVICTION - GUILTY PLEA ADMITS ONLY THOSE FACTS NECESSARY FOR A BARE CONVICTION, EVEN IF OTHER SENTENCING ENHANCEMENT FACTS APPEARED IN THE INDICTMENT
United States v. Thomas, 355 F.3d 1191 (9th Cir. Jan. 26, 2004) (a guilty plea is an admission of the formal elements of a criminal charge, and by pleading guilty a defendant admits al the factual and legal elements necessary to sustain a finding of guilt; however, the entry of a guilty plea is not an admission of any facts other than those necessary to convict; the plea does not admit to facts necessary to be proven, beyond a reasonable doubt, to increase the maximum possible sentence under Apprendi).

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).).

Other

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

ARTICLE - CRIMES OF MORAL TURPITUDE - CATEGORICAL ANALYSIS - ASSESSMENT WHETHER THE FACTS OF THE OFFENSE COMMITTED INVOLVED MORAL TURPITUDE UNDER SILVA-TREVINO Silva-Trevino Removal Defense Where the Facts of the Offense Did Not Involve Moral Turpitude. By: Norton Tooby
The Attorney General's decision in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 7, 2008), cuts two ways. It allows resort to the underlying facts of the case to deport where the immigrant in fact committed a crime of moral turpitude, even though the offense of conviction does not invariably involve moral turpitude when the elements are assessed under the categorical analysis. The reverse is true as well: a person convicted of a crime, which involves moral turpitude under the elements, is not deportable if the facts of the offense committed did not involve moral turpitude.

This conclusion arises not only from the language of the Silva-Trevino decision, but also from its rationale. In this case, the Attorney General criticized the categorical analysis, saying "these approaches do not adequately perform the function they are supposed to serve: distinguishing aliens who have committed crimes involving moral turpitude from those who have not." (Id. at 688.) In terming this a "shortcoming," the Attorney General implied that it was as much a shortcoming to deport those who had not committed a crime of moral turpitude, as to fail to deport those who had. Later in the opinion, he made this explicit:

By contrast, an approach [i.e., the categorical analysis] that applies the Acts moral turpitude provisions to all convictions under a particular criminal statute if moral turpitude inheres in the "usual" or "common" case is likely to be over-inclusive, because it would allow judges to apply the moral turpitude provisions to aliens whose crimes did not in fact "involve moral turpitude."

(Id. at 691, citing Marciano v. INS, 450 F.2d 1022, 1028 (8th Cir. 1971) [ "The statute says deportation shall follow when the crime committed involves moral turpitude, not when that type of crime commonly or usually does."].)

The Attorney General thus condemns the categorical analysis both for failing to deport those who did commit a crime of moral turpitude, and for deporting those who did not. His solution allows the adjudicator to examine the underlying facts of the case to determine whether the offender in fact committed a crime of moral turpitude.

This is a two-way street. If the respondent did not, in fact, commit a crime of moral turpitude, there should be no removal order under the Silva-Trevino analysis. To order removal under those circumstances would be "over-inclusive" with respect to the purpose of this ground of removal, which seeks to deport only those who in fact committed a crime of moral turpitude.

There are many examples of offenses that in the abstract involve moral turpitude, but where the individual facts of the case do not. Even the offense of theft, with an element requiring intent to permanently deprive the owner of the property, may or may not in fact involve moral turpitude. See United States ex rel. Rizzio v Kenney, 50 F.2d 418 (D.Conn. 1931) (court stated theft always involves moral turpitude, except in unusual circumstances). It has sometimes been suggested that extremely minor thefts or ones committed under extenuating circumstances might not involve moral turpitude. Diaz v. Haig, 594 F.Supp. 1 (D.Wyo. 1981) (theft of food by hungry child or theft of garments by ill-clothed child does not constitute crime of "moral turpitude"); Quilodran-Brau v. Holland, 232 F.2d 183 (3d Cir. 1956) (court expressly did not decide whether there might be exception in extreme case).

As a general matter, however, even petty theft has been found to be CMT, irrespective of the lack of gravity of the offense. Pino v. Landon, 349 U.S. 901 (1955) (petty theft of a dozen golf balls held CMT on principle); Orlando v. Robinson, 262 F.2d 850, 851 (7th Cir. 1959), cert. den., 359 U.S. 980, 3 L.Ed.2d 929, 79 S.Ct. 898 (1959) (larceny of sealed Christmas package that, when opened, proved worth only five dollars held CMT); Quilodran-Brau v. Holland, 232 F.2d 183 (3d Cir. 1956) (court expressly did not decide whether there might be exception in extreme case); Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954), revd on other grounds sub nom. Wilson v. Carr, 41 F.2d 704 (9th Cir. 1930); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929) (noncitizen convicted of stealing $15 and sentenced to confinement for one year was deportable, even though Massachusetts law classified the offense as a "misdemeanor"); Henry v. Ashcroft, 175 F.Supp.2d 688 (S.D.N.Y. 2001) (petty larceny held to be a crime involving moral turpitude); Zgodda v. Holland, 184 F.Supp. 847 (E.D.Pa. 1960) (German conviction as a young girl in 1944, of simple larceny for stealing a small sum of money and a few articles of clothing, apparently motivated by privation, at a time when that city was under severe air attack and the population lived largely underground, held CMT, even though the conviction was expunged from the records under German law in 1954).

The categorical analysis has until now prevented respondents from arguing that they did not in fact commit a crime of moral turpitude because the adjudicator has heretofore been prohibited from considering the facts of the case. Where a conviction under a statute prohibiting stealing invariably involved moral turpitude, the court was not permitted to examine the record of conviction to determine it did not involve CMT. Matter of Garcia, 11 I. & N. Dec. 521 (BIA 1966) (BIA precluded from going beyond record of conviction to consider mitigating circumstances).

Under Silva-Trevino, however, the adjudicator can consider the facts of the case to determine whether the defendant in fact committed a CMT, even though the offense constitutes a CMT under the categorical analysis, because to fail to allow this would result in an "over-inclusive" removal order where the noncitizen did not in fact commit a CMT. The adjudicator can consider whether the defendant stole something too insignificant to amount to moral turpitude, or whether the theft was justified by hunger, or poverty, to the extent that it cannot be said factually to involve moral turpitude.

The same should hold true for other types of offenses as well. For example, a fraud offense in which the loss was de minimis, or too small to be significant, should not be considered a CMT under the facts of the case, as when it is a joke like using a two-headed coin to settle a question. It would be necessary, of course, to meet the "realistic probability of prosecution" test, but that is met by showing that even one such case was actually prosecuted, so every noncitizen whose individual case is too minor to be considered sufficiently evil to amount to moral turpitude will automatically meet this test by showing the facts of his or her own case.

DIVISIBLE STATUTE ANALYSIS - ADMISSIONS OF DEFENDANT - DEFENDANT CANNOT BE COMPELLED TO ADMIT FACTS BEYOND THE ELEMENTS OF THE OFFENSE AND NO ADVERSE INFERENCE CAN BE DRAWN FROM THE DEFENDANT'S SILENCE REGARDING THE OFFENSE
Mitchell v. United States, 526 U.S. 314, 325, 328-30 (1999) (defendant cannot be compelled to admit facts beyond the elements of the offense and no adverse inference can be drawn from the defendant's silence regarding the offense).