(B)

Existence v. Nature.  The documents that make up the record of conviction for determining the nature of the offense of conviction (i.e., elements to which a noncitizen entered a plea of guilty) are not the same as the documents that may be considered by the immigration authorities in establishing the mere existence of a conviction.[1]  While cases have determined which documents make up the “record of conviction,”[2] the documents that may be presented to prove the fact of conviction are listed under the Immigration and Nationality Act and regulations.[3]  The two lists are not the same.[4]  The documents required to demonstrate the fact of conviction, for example, do not explicitly include charging documents.  A presentence report may be examined to determine the fact of conviction, but not the nature of the conviction.[5]  The regulations also have a catch-all provision describing documents that may be considered in determining the existence of a conviction that does not apply to the “record of conviction” for divisible statute analysis.[6]  Generally, the courts will accept a broader range of evidence to establish the existence of a conviction, including admissions made by the noncitizen in immigration court,[7] than they are allowed to consult to determine the elements of the conviction to determine whether it triggers a ground of removal.[67]  However, the range of acceptance is not unlimited.[9]  Even when the immigration authorities present such documentation, the documents may still be challenged as insufficient.[10]

 

Courts are sometimes confused by the distinction between the existence versus the nature of a conviction.[11]  In Singh v. USDHS,[68] the Second Circuit found that the conditions of probation, a certificate of disposition and a rap sheet could all be considered to determine the divisible statute analysis question of under which of multiple subdivisions of a New York assault statute a noncitizen defendant was convicted, for the purpose of determining whether the conviction was a crime of moral turpitude, citing INA § 240(c)(3)(B), 8 U.S.C. § 1129a(c)(3)(B) (“Proof of Convictions”).  The court (erroneously) relied heavily upon a case where the issue was proof of conviction, rather than the nature of the conviction.[69]  The court also stated that it was proper to examine the Conditions of Probation form because it was a “[a]n official record of . . . sentence,” apparently forgetting that the sentence imposed does not speak to question of whether an offense is a crime of moral turpitude.[70]

 

The Seventh Circuit held the immigration courts need not be limited to the record of conviction in evaluating whether a conviction constitutes a CMT.[71]  It also found (in light of its abandonment of Taylor and Shepard in the immigration context) that the number of documents that may be examined to prove the nature of a conviction is greater than those that may be used to proved the existence of a conviction.  While examination of a pre-sentence report is insufficient to prove the existence of a conviction, the Seventh Circuit held it may be examined in considering whether a conviction offense is a CMT.[16]

[72] See United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. Oct. 12, 2007) (Taylor and Shepard analysis limiting record of conviction does not apply to the issue of proving the existence of the conviction, only the nature of the conviction); United States v. Snellenberger, 493 F.3d 1015, 1020 n.5, (9th Cir. Jul. 10, 2007) (while an abstract of judgment or minute order cannot be used to establish the nature of a conviction, those documents can be used to establish the existence of a conviction; court distinguished between evidentiary law treating abstract of judgment and minute orders as accurate in the absence of contrary evidence and the question of meeting government's burden in demonstrating nature of conviction), amending 480 F.3d 1187 (9th Cir. 2007); Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (documents listed at 8 C.F.R. § 1003.41 are used to determine existence of conviction, not to determine under categorical analysis whether conviction triggers ground of removal; pre-sentence investigation is not part of the record of conviction for purposes of determining nature of conviction, only its existence); Matter of Teixiera, 21 I. & N. Dec. 316, 319 (holding that a police report does not belong on either list: “The only document introduced into evidence that we consider to be part of the respondent’s “record of conviction,” or that fits any of the regulatory descriptions found at 8 C.F.R. § 1003.41 for documents that are admissible as evidence in any proceeding before an Immigration Judge in proving a criminal conviction, is the record of plea, verdict, and sentence. See 8 C.F.R. § § 1003.41(a)(2), (5), (6). The police report is not part of a ‘record of conviction,’ nor does it fit any of the regulatory descriptions. Cf. 8 C.F.R. § 1003.41.”).

[73] See § § 7.10-7.12, infra.

[74] INA § 240(c)(3)(B), 8 U.S.C. § 1129a(c)(3)(B); 8 C.F.R. § 1003.41.

[75] Note that in implementing the final regulation listing documents admissible as proof on conviction, the title of the rule was changed from “Record of Conviction” to “Evidence of Criminal Conviction” to more accurately reflect the content of the rule.  Att’y Gen. Order No. 1764-93, Executive Office for Immigration Review; Criminal Conviction Records, 58 Fed.Reg. 38952, 38953 (July 21, 1993).

[76] Compare United States v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. June 9, 2003) (government’s burden of proving existence of aggravated felony to enhance illegal re-entry sentence by clear and convincing evidence was satisfied by presentence report listing crime of conviction plus noncitizen’s admission in application for benefits filed with the INS to having committed voluntary manslaughter), with Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (statement concerning underlying facts of offense recounted in the PSR does not determine that these facts are those to which the defendant pleaded guilty; it is not what the person did but the crime of conviction that is decisive for immigration purposes).  See also United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003) (presentence report that failed to identify the exact statute of conviction is legally insufficient to establish that a state conviction fell within the crime of violence definition of U.S.S.G. § 2L1.2 (2001) for purposes of sustaining a 16-level sentence enhancement for illegal re-entry).

[77] 8 C.F.R. § 1003.41(d).

[78] Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. Sept. 28, 2004) (en banc), cert. denied, 125 S.Ct. 2245 (2005) (ambiguous court record held sufficient to establish that respondent had been convicted of a firearms offense, and was thus not eligible for a waiver of deportability under INA § 212(c), 8 U.S.C. § 1182(c)); Fequiere v INS, 279 F.3d 1325 (11th Cir. Jan. 25, 2002) (the forms of evidence listed in INA § 240, 8 U.S.C. § 1229a are not exclusive, and respondent’s admission under oath of conviction constituted clear and convincing evidence in removal hearing, when the government submitted no documentary evidence such as a conviction record from the sentencing court). 

[79] See, e.g., Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb. 29, 2008) ("In addition, we have held that the list of documents enumerated in § 1229a(c)(3)(B) is non-exhaustive and thus does not prohibit the admission of other types of documents if they are sufficiently “probative” of the kind of conviction at issue."), citing Dulal-Whiteway v. U.S. Dep't of Homeland Sec., 501 F .3d 116, 132 (2d Cir. 2007) (holding that while a restitution order may “offer proof that a conviction exists,” an IJ may not rely on it “to establish that the underlying facts of that conviction constitute a removable offense”); Francis v. Gonzales, 442 F.3d 131, 142-43 (2d Cir. Mar. 27, 2006) (holding that while applicable regulations allow an IJ to consider a police “rap sheet” referring to a specific conviction, an IJ may not deem such a report conclusive proof of conviction of a removable offense as rap sheets “lack the necessary information to describe the full record of conviction and do not necessarily emanate from a neutral, reliable source”); see also Dickson v. Ashcroft, 346 F.3d 44, 53-55 (2d Cir. Sept. 9, 2003) (holding that an IJ may not rely upon the “narrative statements of facts” section of an alien's pre-sentence report to determine whether the alien had been convicted of a removable offense).

[80] See, e.g., Francis v. Gonzalez, 442 F.3d 131 (2d Cir. Mar. 27, 2006) (Jamaican rap sheet contained in police report was, by itself, insufficient to demonstrate the existence of a “conviction” for immigration purposes, since the document by itself did not show adjudication of guilt; commentary to 8 C.F.R. § 1003.41(d) suggests rap sheets admissible but not conclusive).

[81] See, e.g., Francis v. Gonzales, 442 F.3d 131, 142-143 (2d Cir. Mar. 27, 2006); Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. Sept. 28, 2004) (en banc), vacating and withdrawing previous opinions, 358 F.3d 828 (11th Cir. Jan. 29, 2004), and 335 F.3d 1269 (11th Cir. June 30, 2003) (BIA could reasonably have concluded that government showed by clear and convincing evidence that noncitizen had been convicted of firearms offense upon evidence of certified record of conviction, even though record contained conflicting information, and unfilled blanks).

[82] See, e.g., Matter of Pichardo-Sufren, 21 I. & N. Dec. 330 (BIA 1996) (citing regulation as listing documents acceptable to prove nature of conviction).

[67] Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) (New York conviction for violation of New York Penal Code § 120.5(1) is a crime of moral turpitude).

[68] Id. at 645 ("However, Francis also held that an IJ may admit a rap sheet as partial evidence of such a conviction."), citing Francis v. Gonzales, 442 F.3d 131, 142-43 (2d Cir. 2006) (Jamaican police “rap sheet” was insufficient evidence that noncitizen had been “convicted” of a drug offense; concluding that 8 U.S.C. § 1229a(c)(3)(B) provides which documents “constitute conclusive proof of conviction” but does not prohibit the admission of a rap sheet as “some evidence of a criminal conviction”).

[69] Id. at 644.  See § 8.12, infra.

[70] See § 6.2(A), supra.

[71] Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008).

CONTROLLED SUBSTANCES " CALIFORNIA -- ARGUMENT " IDENTITY OF THE DRUG IS NOT AN ELEMENT OF CALIFORNIA DRUG OFFENSES, SO MODIFIED CATEGORICAL ANALYSIS IS IMPROPER TO IDENTIFY DRUG
Convictions under California Health & Safety Code 11377 and 11378 do not categorically qualify as generic controlled substance offenses under settled case law. Moreover, because the statute of conviction is not divisible in the sense used by the Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), the Court cannot proceed to examine the record of conviction under the modified categorical analysis of the statute. Consequently, the convictions do not qualify as removable offenses. The Supreme Court in Descamps clarified the operation of the categorical analysis under Taylor v. United States, 495 U.S. 575 (1990). Descamps resolved a split in circuit authority regarding the scope and function of the modified categorical analysis (MCA). Contrary to the Ninth Circuits prior position, but consistent with the majority of other circuit courts, Descamps indicates that the MCA is not an exception to the first-stage categorical analysis of Taylor, but a supplemental tool in aid of the inquiry into the identity of the offense of conviction that is applied only in limited circumstances. See 133 S. Ct. at 2285. In particular, the MCA is resorted to: (1) only when the statute of conviction being compared to the generic offense for Taylor purposes is divisible; and (2) only to determine which alternative offense covered by the divisible statute was the basis of the conviction, not to determine what conduct underlies the predicate conviction. Under Descamps, the reasoning of the majority in United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam), is firmly rejected, so that the MCA cannot be consulted where the statute of conviction is indivisible. See id. at 2286-91. Moreover, Descamps roundly disapproved the Aguila-Montes majoritys implementation of the MCA to ferret out facts about the underlying conviction. See id. at 2287 (That approach . . . turns an elements-based inquiry into an evidence-based one.). Instead, the MCA can be used only to identify the specific subpart (offense) within the divisible statute of which the defendant was convicted. See id. at 2285 (Applied in that way"which is the only way we have ever allowed"the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.). In Descampss case, he was convicted of burglary under California Penal Code 459. That statute defines the offense in terms of an overbroad element of entry that does not require the generic element required for federal burglary of an unprivileged or unlawful entry. See id. at 2282; accord Aguila-Montes, 655 F.3d at 944. The question was whether the statute would qualify as generic if the MCA were consulted. However, unlike the majority in Aguila-Montes, the Supreme Court clarified in Descamps that the second-stage analysis could never be employed to narrow Penal Code 459, because the statute was not only overbroad, but indivisible, and so the MCA is inapplicable: [W]e hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. Id. at 2282. The Court also made clear that although Penal Code 459 contains a number of alternative locations which can be burgled (e.g., a house, a room, a mill, an outhouse, an airplane, a mine, etc.), these were just alternate target locations, different means for satisfying the one element of entry. Because the element entry was overbroad and indivisible, the MCA has no role to play in this case. The dispute here does not concern any list of alternative elements. Rather, it involves a simple discrepancy between generic burglary and the crime established in 459. The former requires an unlawful entry along the lines of breaking and entering. The latter does not, and indeed covers a lawful entry into a store, for example, with intent to commit simple shoplifting, as even the Government acknowledges. In Taylors words, then, Penal Code 459 define[s] burglary more broadly than the generic offense. And because that is true"because in California, to get a conviction, the prosecution need not prove that Descamps broke and entered"a 459 violation cannot serve as an ACCA predicate. Whether Descamps did in fact break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant. Id. at 2285-86 (citations omitted). Applying Descamps, the Fourth Circuit Court of Appeals recently refused to employ the MCA for a Maryland sexual abuse of a child statute, holding that the enumerated list of ways to violate the law were alternative means rather than elements, and, as such, were irrelevant to our inquiry. United States v. Cabrera-Umanzor, 728 F.3d 347, 353 (4th Cir. 2013)(citing Descamps, 133 S.Ct. at 2285 n. 2). The same considerations apply here to California Health & Safety Code 11377 and 11378. Just like the overbroad entry in 459, the term controlled substance encountered in Health & Safety Code 11377 and 11378 is recognized as categorically overbroad, since it includes a broader range of substances than is found in the generic schedules of the federal Controlled Substances Act. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-78 (9th Cir. 2007); United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012). Thus, when a state complaint or information charges an offense involving a controlled substance, that term is overbroad and indivisible as is the entry in the burglary statute. Although controlled substance, like entry, can be subdivided into additional means by which the element can be satisfied, this does not create alternative elements in the sense used in Descamps, 133 S. Ct. at 2283-85. This is clear in both federal and state law. The Ninth Circuit has held that the identity of the specific controlled substance is not an element of a federal drug crime. See United States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011) (holding that pleading to a count alleging cocaine was not an admission to that fact, since We have held, however, that drug quantity and type are not formal elements of the offenses set out in 21 U.S.C. 841.). The same is true in California law: the identity of the drug is not an element that must be charged in the information, but simply a means of committing the offense. See Ross v. Municipal Court, 122 Cal. Rptr. 807, 809-10 (Ct. App. 1975)(the name of drug need not be charged in complaint because it is only a means by which [defendant] committed the crimeof being under the influence.) In fact, the California courts have held there is no fatal variance if the type of drug charged differs from the one proved at trial, which could not be the case if the identity of the drug were an element. See People v. Martin, 86 Cal. Rptr. 3d 858, 861 (Ct. App. 2008); People v. Bryant, 2007 WL 2356072, at *2 (Cal. Ct. App. 2007) (unpublished); People v. Howington, 284 Cal. Rptr. 883, 888 (Ct. App. 1991); People v. Gelardi, 175 P.2d 855, 857 (Cal. Ct. App. 1946) (calling the specification of the drug type in the information mere surplusage), disapproved on other grounds in People v. Perez, 401 P.2d 934 (Cal. 1965). As the Court held in Gelardi, [W]ithout any specification of either opiates or morphine the accusation is sufficient, for it follows the language of the statute, and nothing beyond that is required in the absence of a special demurrer. Ibid. (citing People v. Kinsley, 118 Cal.App. 593, 596)(emphasis added). And because the jury need only find that a controlled substance listed in the statute was involved, and so need not unanimously agree on which drug it was in order to convict, the various substances listed do not create alternative elements rendering the statute divisible and so amenable to the MCA. On this point of requiring jury unanimity, the Descamps majority and dissent were in agreement See Descamps, 133 S. Ct. at 2290 (noting as a reason why a hypothetical, overbroad element of weapon is not narrowed by a jury verdict because [t]he jurors need not all agree on whether the defendant used a gun or a knife or a tire iron); id. at 2296 (Alito, J., dissenting) (By an element, I understand the Court to mean something on which a jury must agree by the vote required to convict under the law of the applicable jurisdiction.). In a broader sense, both the Supreme Court and the Ninth Circuit have at least made clear that for a fact to be employed in the MCA, it must be necessary to sustain the prior conviction. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013): In other words, to satisfy the categorical approach, a state drug offense must meet two conditions: It must necessarily proscribe conduct that is an offense under the CSA, and the CSA must necessarily prescribe felony punishment for that conduct. Id. at 1685. Likewise, [i]t is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant. Aguila-Montes, 655 F.3d at 937. Because under federal and state law, the identity of the specific drug is not necessary to a proper pleading, a valid plea, or jury verdict, drug specifications in 11377 and 11378 do not create alternative elements rendering the statute amenable to the MCA under Descamps, and even if it did, is not a dispositive fact under the second-stage analysis as laid out in Moncrieffe and the surviving portions of Aguila- Montes. See United States v. Cazares, 123 F.3d 1241, 1246-47 (9th Cir. 1997) (guilty plea admits only allegations necessary to be proved for a conviction); Hunt, 656 F.3d at 912 (citing Cazares to hold that a guilty plea to a count containing a to wit: . . . cocaine allegation did not admit the type of drug). Convictions under California Health & Safety Code 11378 and 11377 are not categorically offenses relating to a controlled substance because the California schedule of controlled substances includes substances not federally regulated and, under Descamps, the Court may not use the modified categorical approach for these offenses because the identity of the drug involved in the offense is not an element of the offense. See Descamps v. United States, 133 S. Ct. 2276 (2013). Thanks to Michael Mehr.

BIA

AGGRAVATED FELONY - FIREARMS OFFENSES - ANTIQUE FIREARM DEFENSE
Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA Jun. 9, 2010) (the antique firearm exception in 18 U.S.C. 921(a)(3) is an affirmative defense that must be proven by the noncitizen after the DHS has established the conviction by clear and convincing evidence). NOTE: the BIA did not specify the standard (e.g. preponderance of the evidence) by which the noncitizen must prove the exception applies. This decision appears to conflict with the general rule, both statutory and under the Woodby Supreme Court decision, placing the burden of persuasion on the government to establish every fact necessary to establish deportability, and may be challenged in circuit court.

Ninth Circuit

CONVICTION - NATURE V. EXISTENCE - MINUTE ORDER SUFFICIENT TO PROVE EXISTENCE OF CONVICTION
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (California conviction of possession of methamphetamines, under Health & Safety Code 11377(a), did not constitute a controlled substances conviction, within the meaning of INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), rejecting the argument that the minute order used to prove the conviction for possession of a controlled substance was insufficient to prove the fact of the conviction by the required clear, unequivocal, and convincing evidence standard because it contained several unexplained acronyms); following INA 240(c)(3)(B)(iv), 8 U.S.C. 1229a(c)(3)(B)(iv) ("[o]fficial minutes of a court proceeding" are sufficient "proof of a criminal conviction."); United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008) (en banc) (California state court minute order described the conviction with sufficient reliability that it could be used to establish the nature of a conviction for categorical analysis sentencing purposes).

Other

CONTROLLED SUBSTANCES " CALIFORNIA -- ARGUMENT " IDENTITY OF THE DRUG IS NOT AN ELEMENT OF CALIFORNIA DRUG OFFENSES, SO MODIFIED CATEGORICAL ANALYSIS IS IMPROPER TO IDENTIFY DRUG
Convictions under California Health & Safety Code 11377 and 11378 do not categorically qualify as generic controlled substance offenses under settled case law. Moreover, because the statute of conviction is not divisible in the sense used by the Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), the Court cannot proceed to examine the record of conviction under the modified categorical analysis of the statute. Consequently, the convictions do not qualify as removable offenses. The Supreme Court in Descamps clarified the operation of the categorical analysis under Taylor v. United States, 495 U.S. 575 (1990). Descamps resolved a split in circuit authority regarding the scope and function of the modified categorical analysis (MCA). Contrary to the Ninth Circuits prior position, but consistent with the majority of other circuit courts, Descamps indicates that the MCA is not an exception to the first-stage categorical analysis of Taylor, but a supplemental tool in aid of the inquiry into the identity of the offense of conviction that is applied only in limited circumstances. See 133 S. Ct. at 2285. In particular, the MCA is resorted to: (1) only when the statute of conviction being compared to the generic offense for Taylor purposes is divisible; and (2) only to determine which alternative offense covered by the divisible statute was the basis of the conviction, not to determine what conduct underlies the predicate conviction. Under Descamps, the reasoning of the majority in United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam), is firmly rejected, so that the MCA cannot be consulted where the statute of conviction is indivisible. See id. at 2286-91. Moreover, Descamps roundly disapproved the Aguila-Montes majoritys implementation of the MCA to ferret out facts about the underlying conviction. See id. at 2287 (That approach . . . turns an elements-based inquiry into an evidence-based one.). Instead, the MCA can be used only to identify the specific subpart (offense) within the divisible statute of which the defendant was convicted. See id. at 2285 (Applied in that way"which is the only way we have ever allowed"the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.). In Descampss case, he was convicted of burglary under California Penal Code 459. That statute defines the offense in terms of an overbroad element of entry that does not require the generic element required for federal burglary of an unprivileged or unlawful entry. See id. at 2282; accord Aguila-Montes, 655 F.3d at 944. The question was whether the statute would qualify as generic if the MCA were consulted. However, unlike the majority in Aguila-Montes, the Supreme Court clarified in Descamps that the second-stage analysis could never be employed to narrow Penal Code 459, because the statute was not only overbroad, but indivisible, and so the MCA is inapplicable: [W]e hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. Id. at 2282. The Court also made clear that although Penal Code 459 contains a number of alternative locations which can be burgled (e.g., a house, a room, a mill, an outhouse, an airplane, a mine, etc.), these were just alternate target locations, different means for satisfying the one element of entry. Because the element entry was overbroad and indivisible, the MCA has no role to play in this case. The dispute here does not concern any list of alternative elements. Rather, it involves a simple discrepancy between generic burglary and the crime established in 459. The former requires an unlawful entry along the lines of breaking and entering. The latter does not, and indeed covers a lawful entry into a store, for example, with intent to commit simple shoplifting, as even the Government acknowledges. In Taylors words, then, Penal Code 459 define[s] burglary more broadly than the generic offense. And because that is true"because in California, to get a conviction, the prosecution need not prove that Descamps broke and entered"a 459 violation cannot serve as an ACCA predicate. Whether Descamps did in fact break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant. Id. at 2285-86 (citations omitted). Applying Descamps, the Fourth Circuit Court of Appeals recently refused to employ the MCA for a Maryland sexual abuse of a child statute, holding that the enumerated list of ways to violate the law were alternative means rather than elements, and, as such, were irrelevant to our inquiry. United States v. Cabrera-Umanzor, 728 F.3d 347, 353 (4th Cir. 2013)(citing Descamps, 133 S.Ct. at 2285 n. 2). The same considerations apply here to California Health & Safety Code 11377 and 11378. Just like the overbroad entry in 459, the term controlled substance encountered in Health & Safety Code 11377 and 11378 is recognized as categorically overbroad, since it includes a broader range of substances than is found in the generic schedules of the federal Controlled Substances Act. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-78 (9th Cir. 2007); United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012). Thus, when a state complaint or information charges an offense involving a controlled substance, that term is overbroad and indivisible as is the entry in the burglary statute. Although controlled substance, like entry, can be subdivided into additional means by which the element can be satisfied, this does not create alternative elements in the sense used in Descamps, 133 S. Ct. at 2283-85. This is clear in both federal and state law. The Ninth Circuit has held that the identity of the specific controlled substance is not an element of a federal drug crime. See United States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011) (holding that pleading to a count alleging cocaine was not an admission to that fact, since We have held, however, that drug quantity and type are not formal elements of the offenses set out in 21 U.S.C. 841.). The same is true in California law: the identity of the drug is not an element that must be charged in the information, but simply a means of committing the offense. See Ross v. Municipal Court, 122 Cal. Rptr. 807, 809-10 (Ct. App. 1975)(the name of drug need not be charged in complaint because it is only a means by which [defendant] committed the crimeof being under the influence.) In fact, the California courts have held there is no fatal variance if the type of drug charged differs from the one proved at trial, which could not be the case if the identity of the drug were an element. See People v. Martin, 86 Cal. Rptr. 3d 858, 861 (Ct. App. 2008); People v. Bryant, 2007 WL 2356072, at *2 (Cal. Ct. App. 2007) (unpublished); People v. Howington, 284 Cal. Rptr. 883, 888 (Ct. App. 1991); People v. Gelardi, 175 P.2d 855, 857 (Cal. Ct. App. 1946) (calling the specification of the drug type in the information mere surplusage), disapproved on other grounds in People v. Perez, 401 P.2d 934 (Cal. 1965). As the Court held in Gelardi, [W]ithout any specification of either opiates or morphine the accusation is sufficient, for it follows the language of the statute, and nothing beyond that is required in the absence of a special demurrer. Ibid. (citing People v. Kinsley, 118 Cal.App. 593, 596)(emphasis added). And because the jury need only find that a controlled substance listed in the statute was involved, and so need not unanimously agree on which drug it was in order to convict, the various substances listed do not create alternative elements rendering the statute divisible and so amenable to the MCA. On this point of requiring jury unanimity, the Descamps majority and dissent were in agreement See Descamps, 133 S. Ct. at 2290 (noting as a reason why a hypothetical, overbroad element of weapon is not narrowed by a jury verdict because [t]he jurors need not all agree on whether the defendant used a gun or a knife or a tire iron); id. at 2296 (Alito, J., dissenting) (By an element, I understand the Court to mean something on which a jury must agree by the vote required to convict under the law of the applicable jurisdiction.). In a broader sense, both the Supreme Court and the Ninth Circuit have at least made clear that for a fact to be employed in the MCA, it must be necessary to sustain the prior conviction. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013): In other words, to satisfy the categorical approach, a state drug offense must meet two conditions: It must necessarily proscribe conduct that is an offense under the CSA, and the CSA must necessarily prescribe felony punishment for that conduct. Id. at 1685. Likewise, [i]t is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant. Aguila-Montes, 655 F.3d at 937. Because under federal and state law, the identity of the specific drug is not necessary to a proper pleading, a valid plea, or jury verdict, drug specifications in 11377 and 11378 do not create alternative elements rendering the statute amenable to the MCA under Descamps, and even if it did, is not a dispositive fact under the second-stage analysis as laid out in Moncrieffe and the surviving portions of Aguila- Montes. See United States v. Cazares, 123 F.3d 1241, 1246-47 (9th Cir. 1997) (guilty plea admits only allegations necessary to be proved for a conviction); Hunt, 656 F.3d at 912 (citing Cazares to hold that a guilty plea to a count containing a to wit: . . . cocaine allegation did not admit the type of drug). Convictions under California Health & Safety Code 11378 and 11377 are not categorically offenses relating to a controlled substance because the California schedule of controlled substances includes substances not federally regulated and, under Descamps, the Court may not use the modified categorical approach for these offenses because the identity of the drug involved in the offense is not an element of the offense. See Descamps v. United States, 133 S. Ct. 2276 (2013). Thanks to Michael Mehr.

CATEGORICAL ANALYSIS - CRIME OF MORAL TURPITUDE
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (Moral turpitude is an "extra-element" allowing the courts to examine the underlying facts of the conviction in order to made a moral turpitude determination).

In short, the Attorney General has abandoned the categorical analysis in favor of a fact-based examination, rejecting Taylor, Shepard, and all prior categorical analysis case law in the CMT context. There is no longer any limit to the statute of conviction or minimum conduct. The IJ can look directly to the underlying facts whenever s/he feels it necessary to do so.

The categorical analysis survives only as an "evidentiary hierarchy," to ease the administrative burden of the immigration courts and the DHS. The new rule can be phrased as, "if at first its not a CMT, try, try again."

Step 1 (from Duenas-Alvarez, 549 U.S. 183 (2007)): Look at the statute, if the statute is categorically a CMT the conviction is a CMT. The Attorney General applies Duenas language regarding "reasonable probability of prosecution," as a requirement that the noncitizen prove that the statute of conviction is not categorically a CMT by pointing to the facts of his own case or a prior published decision. If there isnt a case out that punishes a non-CMT under the statute, then the conviction is categorically a CMT.

Step 2 (from Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006)): "Modified categorical approach" no longer means looking to determine the elements of conviction in case of a divisible statute. The term now means looking to any facts in the record of conviction to determine whether the offense was in fact a CMT.

Step 3 (from Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008)): The Attorney General sees no justification for being limited to the record of conviction. If it cannot be determined that the conviction was a CMT by looking to the facts in the record of conviction, the immigration authorities can look at any and all underlying facts and subsequent testimony if the immigration judge decides it is necessary to do so.

While the noncitizen cannot dispute any facts found by the judge/jury or elements necessary for conviction, the DHS not limited by the elements of conviction in any way.

The minimum conduct punishable under the Texas Statute at issue in Silva-Trevino included where a 20 year old consensually feeling the breast of a girl 1-day shy of 18 years old, though clothing, while (mistakenly) believing she was over 18 years old. The conviction record reflected only the basic language of the statute. Nevertheless, the Attorney General remanded the case back to the BIA to determine whether the actor, in fact, knew or had reason to believe that the victim was under the age of 18.

The Attorney General was explicit in stating his view that Brand-X allows this decision to overrule all prior inconsistent case law from the Circuit Courts.

See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments in opposition to this terrible decision. This decision abruptly changes nearly 100 years of CMT law, and should be attacked.