(A)

In General.  The courts are not authorized to examine the record of conviction where a given statute (or subdivision of a statute) contains only one set of elements, because then the statute is not divisible.[1]  If it is not possible to determine, applying the categorical analysis, whether the nondivisible statute or subdivision triggers removal, the court can go no further.[2]  To do so would mean going beyond the elements of the statute into the facts of the case.  The court must instead apply the minimum conduct analysis to determine whether the full range of conduct punished under the statute falls within the ground of removal.[3]  If not, the conviction does not trigger removal.  Likewise, if the conviction is categorically a crime of moral turpitude or otherwise triggers removal, there is no need to examine the record of conviction.[50]

 

            A clear example would be California Penal Code § 240, which defines “assault” as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”[51]  This statute contains only a single set of elements: (1) unlawful attempt to commit; (2) a violent injury; (3) on the person of another; and (4) coupled with a present ability to do so.  In a case where the government bears the burden of proof, if any violation of this statute is not a CMT, then this offense can never be found to be a CMT, regardless of the individual facts of the case.  Thus, an examination of the record of conviction as part of a divisible statute analysis would be irrelevant.

 

            The Second Circuit applied a similar principle in finding that the BIA could not infer that a burglary statute involved a permanent (vs. temporary) taking where the statute of conviction required no proof that the taking was permanent:

 

            We have held that the BIA cannot adjudicate the facts in a criminal case to determine whether, standing alone, they suggest that the petitioner committed a removable offense. See Sui v. INS, 250 F.3d 105, 119 (2d Cir.2001) (emphasizing that the BIA cannot assume the position of factfinder). Because Wala did not admit to, was not charged with, and was not required to plead to a permanent taking in order to be convicted in Connecticut of burglary in the third degree, Wala's guilty plea does not necessarily rest on facts identifying the burglary as a CIMT. See Dulal-Whiteway, 501 F.3d at 129-31. As the Supreme Court explained in Shepard, if the state statute requires no finding of the particular element at issue and there is no charging document that narrows the charge to those limits, the “only certainty [in a pleaded case] of [that] finding lies in ... the defendant's own admissions or accepted findings of fact confirming the factual basis for a valid plea.” Shepard, 544 U.S. at 25. In Wala's case, the record is silent on the removability element, that is, whether he intended to commit a permanent taking. The BIA, by looking to the facts of Wala's conviction to infer such an intent, therefore transgressed the permitted scope of the modified categorical approach. [52]

 

            In the CMT context, the Ninth Circuit has stated that where the state statute lacks an element required to establish the existence of a crime of moral turpitude,[53] it is unnecessary to engage in a modified categorical analysis.[54]

 

            Some courts incorrectly conclude that a statute without subdivisions, and without any disjunctive elements, is “divisible” merely because the single set of elements required to convict embraces both some acts which do, and other acts which do not, trigger removal.  These cases hold that when such a statute has been violated, it is permissible to look to the record of conviction to determine the specific act committed.[9]  This is improper.  The record of conviction cannot add additional elements to the statute that are not in the offense as defined by the Legislature, and the court is precluded from examining facts of the case not necessary to convict, i.e., non-elements, even if they are included in the record of conviction.[10]  See § 7.9, infra.

 

            In some cases, a state statute may contain subdivisions or disjunctive language, but still will not be “divisible” for immigration purposes, because (regardless of the subdivisions) each offense described within the statute clearly falls (or does not fall) within the ground of removal.[11]

 

            Despite this, courts sometimes improperly proceed to examine the record of conviction in making a divisible statute analysis when it is not necessary or permissible to do so.[55]  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 16.14 (4th Ed. 2007) for further discussion. 

[56] 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.”).  Cf. Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (“Sexual communication with a minor is inherently wrong and contrary to the accepted rules of morality and the duties owed between persons. The full range of conduct prohibited by section 9.68A.090 of the Revised Code of Washington categorically constitutes a crime involving moral turpitude. Therefore, without proceeding to the modified categorical approach, we conclude that Morales has been convicted of a crime involving moral turpitude . . . .”).

[57] Likewise, where all the possible acts punishable by the statute trigger removal under the ground at issue, there is no need to examine the record of conviction.  See, e.g., United States v. Ladwig, 432 F.3d 1001, 1004 n.7 (9th Cir. Dec. 27, 2005) (“Because the Washington statute is not ‘facially overinclusive,’ that is, because it does not criminalize, as a felony, conduct that is not a ‘violent felony’ under the [Armed Career Criminal Act], we need not address whether [the offense] is a ‘violent felony’ under the modified categorical approach.”); Sutherland v. Reno, 228 F.3d 171, 177 n.5 (2d Cir. 2000) (rejecting petitioner’s argument that BIA was required to look to record of conviction, since court determined that all offenses under the statute of conviction were crimes of violence); Matter of Martinez-Recinos, 23 I. & N. Dec. 175 (BIA 2001) (although statute contained discrete subsections, convictions under all subsections were equally grounds for deportation).

[58] See § 6.6, supra.

[59] United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. Oct. 12, 2007) (where the existence of a categorical crime of violence may be shown, there is no need to apply Taylor and Shepard or look further to the record of conviction to determine whether the offense is a crime of violence).

[60] California Penal Code § 240.

[61] Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007).

[50] See § 8.2, infra.

[51] Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) ("Where the statute of conviction is categorically broader than the generic definition of a crime involving moral turpitude, this Court employs the “modified categorical” approach. Navarro-Lopez, 503 F.3d at 1073. However, the “modified categorical” approach only applies when the particular elements in the statute of conviction are broader than the generic crime. Id. When the statute of conviction is missing an element of the generic crime altogether, we cannot hold that “a jury was actually required to find all the elements” of the generic crime. Id. The crime of failing to register, like the accessory crime at issue in Navarro-Lopez, lacks an element of the generic crime: the requisite baseness or depravity. Therefore, there is no reason to apply the “modified categorical” approach in this case.").

[52] See, e.g., Matter of C, 5 I. & N. Dec. 65 (BIA 1953) (Oregon conviction of contributing to the delinquency of a minor held a CMT under a statute broad enough to include acts which did and acts which did not involve moral turpitude, where record of conviction merely stated that the respondent was convicted of the crime of contributing to the delinquency of a minor, but an examination of the information filed against him clearly showed the commission of certain lewd and lascivious acts which involved moral turpitude).

[53] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc).

[54] See, e.g., Matter of Martinez-Recinos, 23 I. & N. Dec. 175, 117 (BIA Oct. 15, 2001) (“Although we agree with the respondent that the statute contains several parts, we find that each of the offenses enumerated in section 118(a) of the California Penal Code constitutes perjury as defined in 18 U.S.C. § 1621, and, thus, is an aggravated felony.  Because all of the parts of the California statute encompass the aggravated felony crime of perjury as defined by the federal statute, we need not look further to the record of conviction.”).

[55] Stubbs v. Ashcroft, 452 F.3d 251 (3d Cir. Jun. 29, 2006); Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. Jun. 26, 2006).

Fourth Circuit

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS MAY NOT BE APPLIED TO INDIVISIBLE COMMON LAW OFFENSE
United States v. Montes-Flores, 736 F.3d 357 (4th Cir. Nov. 26, 2013) (South Carolina conviction for assault and battery of a high and aggravated nature (the unlawful act of violent injury to another accompanied by circumstances of aggravation), was not categorically a crime of violence within the meaning of the residual clause of USSG 2L1.2(b)(1)(A)(ii) (2012) (any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another); the district court erroneously applied the modified categorical approach to this offense, which was an indivisible common law crime, because this offense can be committed with or without force"and even when force is involved, it can be committed in a violent or nonviolent manner); applying Descamps v. United States, 133 S.Ct. 2276 (June 20, 2013); see United States v. Hemingway, 734 F.3d 323, 330 (4th Cir. Oct. 31, 2013) (South Carolina conviction for assault and battery of a high and aggravated nature, was not categorically a crime of violence under the ACCAs residual clause). Note: While Descamps held open the question whether its analysis applies to common law crimes, as opposed to crimes defined by statute, this decision does apply the categorical analysis to common law offenses. We agree with our sister circuits that, when a state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition. Id. at 367 (internal quotations mark and citations omitted).

CATEGORICAL ANALYIS " DIVISIBLE STATUTE ANALYSIS " FIREARMS OFFENSES
United States v. Royal, 731 F.3d 333 (4th Cir. Oct. 1, 2013) (in federal conviction for possession of ammunition by an ex-felon, in violation of 18 U.S.C. 922(g)(1), defendant has burden of establishing as affirmative defense that bullets in question were designed exclusively for use in antique firearms).

Eighth Circuit

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
United States v. Tucker, 740 F.3d 1177 (8th Cir. Jan. 29, 2014) (under the Supreme Courts decision in Descamps, the court may not apply the modified categorical approach to a statute that is textually indivisible, such as the Missouri statute penalizing a walk-away escape from a half-way house, to hold the offense to be a crime of violence under the residual otherwise clause of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii), because there was a guard on duty when the escape occurred); partially overruling United States v. Parks, 620 F.3d 911 (8th Cir. 2010) (holding that a walk-away escape from a halfway house was a crime of violence under the Career Offender Guideline, applying the modified categorical approach to determine that Parkss escape offense posed a substantial risk of physical injury to another, because there was a guard on duty at the entrance of the halfway house when Parks walked away, even though the Missouri statute did not make this an element of the offense).

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
United States v. Tucker, 740 F.3d 1177 (8th Cir. Jan. 29, 2014) (under the Supreme Courts decision in Descamps, the court may not apply the modified categorical approach to a statute that is textually indivisible, such as the Missouri statute penalizing a walk-away escape from a half-way house, to hold the offense to be a crime of violence under the residual otherwise clause of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii), because there was a guard on duty when the escape occurred); partially overruling United States v. Parks, 620 F.3d 911 (8th Cir. 2010) (holding that a walk-away escape from a halfway house was a crime of violence under the Career Offender Guideline, applying the modified categorical approach to determine that Parkss escape offense posed a substantial risk of physical injury to another, because there was a guard on duty at the entrance of the halfway house when Parks walked away, even though the Missouri statute did not make this an element of the offense).

Ninth Circuit

CATEGORICAL ANALYSIS " DIVISIBILITY " BURDEN " DEPUBLISHED DECISION
Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) (Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), holding that a noncitizen cannot meet burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, is not irreconcilable with Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), or Descamps v. United States, 133 S.Ct. 2276 (2013), and so remains good law), will be re-heard en banc. The prior decision shall not be cited as precedent.

CATEGORICAL ANALYSIS " DIVISIBILITY " BURDEN " DEPUBLISHED DECISION
Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) (Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), holding that a noncitizen cannot meet burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, is not irreconcilable with Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), or Descamps v. United States, 133 S.Ct. 2276 (2013), and so remains good law), will be re-heard en banc. The prior decision shall not be cited as precedent.

CONVICTION -- NATURE OF CONVICTION " DIVISIBILITY
Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. Oct. 6, 2015) (California conviction of possession of child pornography, Penal Code 311.11(a), is not a divisible statute, since the jury is not required to find the exact nature of the sexual activity portrayed, so no resort may be had to the modified categorical analysis to determine whether the conviction qualified as a child pornography aggravated felony, under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I)).

CRIMES OF MORAL TURPITUDE " UNAUTHORIZED DRIVING A VEHICLE " NOT A DIVISIBLE STATUTE
Almanza-Arenas v. Holder, ___ F.3d ___ (9th Cir. Nov. 10, 2014) (California conviction of violating Vehicle Code 10851(a), a statute that criminalizes both conduct that would constitute a crime of moral turpitude " taking a vehicle with intent permanently to deprive the owner, and conduct that does not amount to a crime of moral turpitude " intent temporarily to deprive the owner " is not a divisible statute, because it creates a minimum intent of at least temporarily depriving the owner of the property, rather than different offenses with different elements as to which the jury must unanimously agree; the immigration authorities may not apply the modified categorical analysis or consider the record of conviction, even in the context of inadmissibility and eligibility to apply for non-LPR cancellation of removal where the respondent bears the burden of proof).

CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " INDIVISIBLE STATUTE
United States v. Cabrera-Gutierrez, ___ F.3d ___, 2014 WL 998173 (9th Cir. Mar. 17, 2014), withdrawing and superseding previous opinion on grant of panel rehearing (Oregon conviction of sexual abuse in the second degree, in violation of Or.Rev.Stat. 163.425, does not trigger a sentence for a federal conviction for failing to register under the Sex Offender Registration and Notification Act, 18 U.S.C. 2250, as a Tier III sex offender, because the Oregon statute is not divisible: The statute states a single, indivisible set of elements, and the modified categorical approach does not apply. Descamps, 133 S.Ct. at 2282; see also Acosta"Chavez, 727 F.3d at 909 (holding that where the state statute's age element is broader than the federal definition and is not divisible ... we may not apply the modified categorical approach).

CRIMES OF MORAL TURPITUDE " MODIFIED CATEGORICAL ANALYSIS
Saavedra-Figueroa v. Holder, 625 F.3d 621, 627-28 (9th Cir. Nov. 5, 2010) (Regardless of whether we may apply this approach in this case in light of our holding that misdemeanor false imprisonment lacks an element of the generic crime-see Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc)-the application of the modified categorical approach would make no difference. Although Saavedra-Figueroa admitted both section 236 misdemeanor convictions, there is no record evidence of the factual allegations underlying his second conviction. Accordingly, we cannot determine that the second conviction was based on a judicial determination of facts that fall within the federal generic definition of a CIMT. See Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).); citing Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007).

NATURE OF OFFENSE - MODIFIED 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 modified categorical analysis for removal purposes, the court cannot go outside the elements of the offense of conviction).

Other

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " JURY UNANIMITY REQUIREMENT
United States v. Mathis, 136 S.Ct. 894 (2016),granting certiorari in 786 F.3d 1068 (8th Cir. 2015)