The procedure for determining deportability of a conviction, under a divisible statute, is as follows:

 

            1.  Identify the statute of conviction.

 

            2.  Identify the different offenses that are prohibited by the divisible statute of conviction.  List these offenses as “sets of elements” to be examined.

 

            3.  Determine whether the minimum conduct necessary to sustain a conviction under each separate set of elements is sufficient to trigger a ground of deportation.  See § 5.56, supra.

 

            4.  If a conviction under each and every set of elements would trigger deportation, then the noncitizen is deportable on the basis of the conviction.  Go to Step 12.

 

            5.  If no conviction under any set of elements can trigger deportation, because some minimum conduct falls outside the ground of deportation under each set, then the noncitizen is not deportable.  See § 6.19, supra.

 

            6.  If the minimum conduct under one or more of the sets of elements triggers deportation, while one or more do not, the immigration courts and federal courts will be free to examine the record of conviction to determine which offense (set of elements) was the offense of conviction.

 

7.  The courts may not go behind the record of conviction to ascertain the facts of the case, in order to determine whether the conduct and intent as committed by the noncitizen bring the conviction within a ground of deportation.[24]  See § § 6.21-6.22, infra.

8.  It is therefore necessary to construct a record of conviction that will not establish the conviction as falling within the ground of deportation.  See § 6.23, infra.

 

9.  The charge to which a plea is entered must be written so as not to bring the conviction within the ground of deportation.  See § 6.24, infra.

 

            10.  The defendant must not make a plea or an admission, either in writing in a plea agreement or orally during the plea hearing, that brings the conviction within a ground of deportation.  See § § 6.25-6.36, infra.

 

            11.  The sentence and judgment must not bring the conviction within the ground of deportation.  See § § 6.36-6.40, infra.

 

            12.  Counsel may also wish to seek an alternative plea to a different conviction that is safe from an immigration standpoint.

[24] Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980) (“such collateral attacks . . . could not reasonably provide a fair forum for ascertaining the truth of the assertion.  The proceeding would be conducted in a different court, and a different country, geographically and temporally far removed from the locus of the crime”); Castle v. INS, 541 F.2d 1064, 1066 n.5 (4th Cir. 1976) (Congress did not intend that the INS or courts undertake the challenging task of relitigating the facts of the offense of conviction); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. den., 405 U.S. 997, 92 S.Ct. 1260 (1972); Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929); Zgodda v. Holland, 184 F.Supp. 847 (E.D. Pa. 1960); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of Santoro, 11 I. & N. Dec. 607, 608 (BIA 1966) (it has “long ago been settled . . . that the immigration authorities may not go behind the record of conviction to examine the circumstances under which the crime was committed, and the determination of whether the crime involves moral turpitude must be made on the basis of the statutory definition of the crime and the record of conviction” (citations omitted); conviction of mayhem by biting wife constituted crime involving moral turpitude).  Cf. Matter of T, 2 I. & N. Dec. 22 (AG 1944).

CONVICTION - DIVISIBLE STATUTE ANALYSIS - TAYLOR ANALYSIS APPLIES TO CONVICTIONS RESULTING FROM PLEA AND COURT TRIAL AS WELL AS JURY TRIAL
Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005) (a court sentencing under the Armed Career Criminal Act may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary so as to serve as a predicate offense for a sentence enhancement).
http://laws.findlaw.com/us/000/03-9168.html      Relying on its sentencing enhancement cases, the First Circuit has refused to bar an immigration factfinder from examining a police report as part of the record of conviction in determining whether a noncitizen has been convicted of an aggravated felony. Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (relying on United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and United States v. Shepard, 231 F.3d 56 (1st Cir. 2000) to hold that there is no due process problem where factfinder considers police report as part of the record of conviction).  The United States Supreme Court, in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005), overruled United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and reversed United States v. Shepard, 231 F.3d 56 (1st Cir. 2000).  Therefore, Emile is no longer good law since the two cases on which it rests have been reversed or overruled by the United States Supreme Court, which expressly rejected the reasoning on which it relied.      Thanks to Dan Kesselbrenner for this analysis.      In Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005), the United States Supreme Court held that the categorical analysis of Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), applies to the determination of whether a conviction resulting from a guilty plea constitutes a generic burglary conviction, so as to served as a predicate conviction under the Armed Career Criminal Act to enhance a federal criminal sentence. The court therefore held that this determination was based on a categorical analysis of the elements of the offense of conviction, rather than the underlying facts of the case, and the sentencing court was precluded from considering the facts contained in police reports or complaint summaries. Instead, the Taylor analysis is limited to consideration of the charge to which a plea is entered, the plea agreement, and any facts agreed to by the defendant during the plea process. The Supreme Court also suggested that the same analysis (appropriately modified) would be applied to convictions resulting from court trials.      The court summarized its holding as follows: The question here is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary. We hold that it may not, and that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. Ibid. at 1257.      In the process of reaching its decision, the court stated: We agree with the First Circuit (and every other Court of Appeals to speak on the matter) that guilty pleas may establish ACCA predicate offenses and that Taylor's reasoning controls the identification of generic convictions following pleas, as well as convictions on verdicts, in States with non-generic offenses. See 348 F.3d, at 312, n. 4 (citing cases). Shepard wisely refrains from challenging this position, for the ACCA nowhere provides that convictions in tried and pleaded cases are to be regarded differently. It drops no hint that Congress contemplated different standards for establishing the fact of prior convictions, turning on the basis of trial or plea. Nothing to that effect is suggested, after all, by the language imposing the categorical approach, which refers to predicate offenses in terms not of prior conduct but of prior "convictions" and the "element[s]" of crimes. Taylor, 495 U.S., at 600-601, 110 S.Ct. 2143 (citing 18 U.S.C. 924(e)). Nor does the Act's legislative history reveal a lesser congressional preference for a categorical, as distinct from fact-specific, approach to recognizing ACCA predicates in cases resolved by plea. Taylor, 495 U.S., at 601, 110 S.Ct. 2143. And certainly, "the practical difficulties and potential unfairness of a factual approach are daunting," ibid., no less in pleaded than in litigated cases. Finally, nothing in Taylor's rationale limits it to prior jury convictions; our discussion of the practical difficulties inherent in looking into underlying circumstances spoke specifically of "cases where the defendant pleaded guilty, [in which] there often is no record of the underlying facts." Ibid. Our job, then, is to find the right analogs for applying the Taylor rule to pleaded cases. Ibid. at 1259.      This reasoning applies with equal force to the question whether Congress intended to apply the repeal of INA 212(c) relief retroactively to disturb the settled expectations of those defendants whose convictions resulted from jury trials, rather than from guilty pleas. The legislative history and purposes of the repeal are barren of any suggestion that Congress meant to distinguish between convictions resulting from jury trials, as opposed to guilty pleas, for this purpose.      The Supreme Court therefore reaffirmed the Taylor reasoning, which was announced in a case in which the conviction resulted from a jury trial, and applied it to convictions resulting from court trials and guilty pleas: The Court did not, however, purport to limit adequate judicial record evidence strictly to charges and instructions, id., at 602, 110 S.Ct. 2143 (discussing the use of these documents as an "example"), since a conviction might follow trial to a judge alone or a plea of guilty. In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge's formal rulings of law and findings of fact, and in pleaded cases they would be the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. With such material in a pleaded case, a later court could generally tell whether the plea had "necessarily" rested on the fact identifying the burglary as generic, Taylor, supra, at 602, 110 S.Ct. 2143, just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case. Ibid. at 1259-1260 (footnote omitted). Therefore, in the context of a conviction resulting from a court trial, the court applying a categorical analysis may consider the charge of conviction and the "bench-trial judge's formal rulings of law and findings of fact . . . ." Ibid. at 1259. The court may not look to police reports or complaint applications.      In the context of a conviction resulting from a guilty plea, the court applying a categorical analysis may consider the charge of conviction and "the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea." Ibid. at 1259-1260. The court may not look to police reports or complaint applications.

Fifth Circuit

DIVISIBLE STATUE ANALYSIS - CONJUNCTIVE/DISJUNCTIVE CRIMINAL CHARGES
Omari v. Gonzales, __ F.3d __, 2005 WL 1714364 (5th Cir. July 25, 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud," as recited in the statute does not mean that Omari was necessarily convicted of transferring fraudulently obtained property. Indictments often allege conjunctively elements that are disjunctive in the statute, and this does not require either the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty."), following Valansi v. Ashcroft, 278 F.3d 203, 215 n. 10 (3d Cir. 2002).
http://caselaw.lp.findlaw.com/data2/circs/5th/0361014p.pdf

Ninth Circuit

DISJUNCTIVE STATEMENT - MEANING
United States v. Karaouni, 379 F.3d 1139 (9th Cir. Aug. 24, 2004) ("Karaouni contends that no rational trier of fact could find beyond a reasonable doubt that his verification of the printed statement on the I-9 Form constituted a violation of 911 because the printed statement was phrased in the disjunctive. See Prince v. Jacoby, 303 F.3d 1074, 1080-81 (9th Cir.2002) (explaining that the use of the disjunctive "or" suggests that terms in a sequence should not be interpreted as synonyms). According to Karaouni, by checking the box next to the printed statement, which the government presumably drafted with care, he merely claimed that he was a citizen or a national, not that he was a citizen and not that he was a citizen and a national.").