Crimes of Moral Turpitude
§ 7.6 (B)
For more text, click "Next Page>"
(B)
Multiple Means. Some statutes punish a general offense that may be committed by means of a range of objects or methods. Whether the offense triggers deportation, then, may depend upon the object in question. For example, assault with a deadly weapon, or unlawful possession of a controlled substance. In these cases, it is less clear whether divisible statute may be applied to determine the object in question.
In the simple possession context, it is generally accepted that the record of conviction can be examined to determine the substance possessed.[1] In this context, the state and federal jurisdictions each have distinct schedules of substances which must be compared. Although the state statute of conviction may only indicate, e.g., possession of a “controlled substance,” that term is defined elsewhere in the state statutes.
This, however, may not always be the case. For example, California Penal Code § 245(a) formerly prohibited assault with a deadly weapon. That term went undefined under the statute.[2] In looking at the essential elements of the crime, as defined by statute, it was not possible to say that the minimum conduct necessary to constitute this offense involved a firearm, since it was perfectly possible to violate it by committing all the elements with a knife or baseball bat. Under a strict analysis, which considers only the categorical analysis of the elements of the offense, a court cannot consider this to be a divisible statute, since it defines only one offense, even though the offense may be committed by a number of different means (or with a number of different objects).[3]
The courts have considered the record of conviction, which includes the indictment, plea, verdict and sentence, only where the statute is divisible, for the purpose of determining under which section or clause of the statute the conviction occurred.[4]
Counsel should argue, with this type of statute, that whether a gun or knife was used constitutes one of the facts of the case, rather than an essential element of the offense. Therefore, a court should not look at the record of conviction under these circumstances to determine the facts of the offense which are not necessary to convict, since they are irrelevant to the categorical analysis.
[62] Matter of Paulus, 16 I. N. Dec. 274 (BIA 1965) (state controlled substances offense triggers removal only if the substance involve is included in the Federal controlled substances schedule).
[63] California Penal Code § 245 (1980).
[64] 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 deportability finding on the basis of a conviction for violating that statute, unless the statute is divisible into discrete subsections of offenses 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).
