Safe Havens

The general rule is that the courts will only examine the elements of the offense as listed in the statute, and as modified by judicial decisions, rather than the conduct of the accused.  See § 6.19, infra.  However, a slightly different analysis is employed where the statute of conviction is considered to be “divisible.”  Where the statute is divisible, it encompasses some crimes that would, and some crimes that would not, trigger a given ground of deportability.  In that case, the court can look beyond the statute, to the record of conviction, to identify the part of the statute of which the noncitizen was convicted.[18]  See § 6.20, infra.  Because a categorical analysis is employed, the court is limited to the “record of conviction,” which is specifically defined and discussed in detail below.  See § 6.21, infra.  The court may not resort to the actual facts of the case to determine whether the offense of conviction triggered a conviction-based ground of deportation.  See § 6.22, infra.

            Generally speaking, when dealing with a conviction-based ground of deportability, the facts are irrelevant; the court considers only the offense of conviction and its elements in determining whether it triggers a ground of deportation.  See § 6.22, infra.  When conducting a “divisible statute” analysis, the court is also generally limited to the record of conviction, and may not go outside the record of conviction to add facts necessary to bring the conviction within a ground of deportation.  See § 6.21, infra.  On the other hand, the facts of a case may be considered when dealing with a conduct-based ground of deportability.  See § 2.9, supra.

[18] Montero-Ubri v. INS, 229 F.3d 319 (1st Cir. 2000) (if the statute of conviction is divisible, including both crimes of moral turpitude and crimes not involving moral turpitude, the immigration court may consider the documents comprising the record of conviction (i.e., the indictment, charging papers, conviction documents, and the like) to determine which type of crime was the crime of which the noncitizen was convicted).  See also United States ex rel. Mongiovi v. Karnuth, 30 F.2d 825 (D.N.Y. 1929); United States ex rel. Teper v.  Miller, 87 F.Supp. 285 (D.N.Y. 1949); United States v. Carrollo, 30 F.Supp. 3 (D.Mo. 1939); United States ex rel. Guarino v. Uhl, 27 F.Supp. 135 (D.N.Y. 1939), rev’d on other grounds, 107 F.2d 399 (2d Cir. 1940); United States ex rel. Pellegrino v. Karnuth, 23 F.Supp. 688 (D.N.Y. 1938); United States ex rel. Schreiber v. Reimer, 19 F.Supp. 719 (D.N.Y. 1937); Matter of Marchena, 12 I. & N. Dec. 355 (BIA 1967); Matter of Garcia, 11 I. & N. Dec. 521 (BIA 1966); Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962).