Safe Havens

 

(A) Divisibility Analysis — When It Applies.  A statute is “divisible” when it contains several different offenses, i.e., different sets of elements under any one of which a conviction may be sustained.[25]  If a conviction under one set of elements would, in all cases, fall within a ground of removal, but a conviction under a separate set of elements would not, the court is allowed to look to the “record of conviction” to determine which set of elements formed the basis of the defendant’s conviction.[26] 

 

If the minimum conduct necessary to sustain a conviction under the set of elements of which the noncitizen was convicted would not necessarily trigger deportability, a conviction under that set of elements will not be sufficient to meet the government’s burden in proving the conviction falls within a conviction-based ground of deportability.  The court should not be allowed to look to the record of conviction in such a case, since the offense to which the noncitizen pleaded or was found guilty has already been established.

 

This divisibility analysis has consistently been applied across the board to all categories of removable criminal convictions.[27]  Decisions applying divisibility analysis therefore apply interchangeably, regardless whether the case involved crimes of moral turpitude, aggravated felonies, firearms offenses, drug offenses, or any other category of removable offense.

 

Arguably, in some circuits, a second level of analysis is required for certain grounds of removal, i.e., where the ground of removal itself requires proof of additional information not specifically tied to the elements of the conviction,[28] such as loss to the victim.[29]  However, this second level of analysis should also be confined to the information contained in the record of conviction.[30]  The record of conviction may also be consulted where a question of sentencing may affect deportability or inadmissibility on account of a conviction.  Examples of this would include sentence imposed, as where a noncitizen is charged with having committed an aggravated felony crime of violence, with a sentence imposed of at least one year,[31] and other grounds of deportation that depend on maximum possible sentence.[32]  The question of sentence, however, is distinct from the question of the nature of the offense of conviction.  Therefore, decisions allowing resort to the record of conviction for sentence do not undermine the rule that the record of conviction may be consulted, to determine the nature of the offense, only where the statute of conviction is divisible and it is not otherwise possible to determine which offense within a divisible statute is the offense of conviction.

 

Unfortunately, some courts are less than clear in either their descriptions, or their applications of divisible-statute analysis.  Each circuit may have its own method and terminology when it comes to dividing a statute.  The Ninth Circuit, for example, distinguishes between the “categorical approach” and the “modified categorical approach” to describe the analysis.[33]  The Seventh Circuit, on the other hand, distinguishes between a “charge-offense,” which is dependent upon the elements of the crime and can only be determined by looking to the statute, and a “real-offense,” for which the court may examine the “charging papers” to determine the elements of the statute to which the noncitizen was found guilty.[34]  Although essentially applying the same analysis, the differing terminology and methods often result in confusion and misunderstanding.

 

            Even after the court has conducted a divisible-statute analysis, the court may still be unable to determine whether a given conviction triggers deportability.  For example, the Fifth Circuit in United States v. Calderon-Pena,[35] found that, even after looking to the record of conviction, and “paring down” the statute to include only the elements to which the noncitizen pleaded guilty, the pared-down statute still did not establish that the offense of which the noncitizen had been convicted was invariably a crime of violence.

[25] 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 a deportability finding on the basis of a conviction for violating that statute, unless the statute is divisible into discrete subsections of acts 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).

[26] See generally Barbara Hines, Selected Issues Relating to Crimes of Moral Turpitude, in 2 American Immigration Lawyers Association, 2000-01 Immigration and Nationality Law Handbook 277, 280 (Randy P. Auerbach, et al., Eds., 2000).

[27] See, e.g., Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) (“domestic partner” requirement for the crime of domestic violence ground of removal is an “element” to be proven or admitted during the criminal proceedings); Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (victim’s age must be an element of conviction for offense to qualify as “sexual abuse of a minor”; such inquiry is limited to ‘formal categorical’ analysis); Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999) (aggravated felony); Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996) (applying a divisibility analysis to firearms offenses); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (crimes involving moral turpitude); Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979) (controlled substances offenses).

[28] See discussion in Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (stating in dictum that certain grounds of removal ‘invite’ inquiry into the ‘underlying facts’ of the case).  But see Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004) (in jury trial case, loss to the victim amount must have been found by jury beyond a reasonable doubt).

[29] See, e.g., INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (“loss to the victim or victims exceeds $10,000”).

[30] See Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. March 4, 2003) (limiting examination of “loss to the victim” for purposes of INA § 101(a)(43)(M), 8 U.S.C. § 1101(a)(43)(M) to the record of conviction); Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (same).

[31] See, e.g., INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (“term of imprisonment at least one year”).  But see Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001); Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (applying Taylor analysis to sentences to find that, as a recidivist sentence enhancement was not an “element” of an offense, such enhancement could not be considered in determining the length of sentence imposed).

[32] See, e.g., INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q) (“punishable by imprisonment for a term of 5 years or more”).  See also Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) (clarifying Apprendi v. New Jersey, 530 U.S. 466 (2000) rule that any factual sentence enhancement that increases potential punishment over statutory maximum constitutes an element of the offense and must be found true by the jury; relevant “statutory maximum” is not maximum sentence judge may impose after finding additional facts, but maximum judge may impose without any additional findings).

[33] See, e.g., Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).

[34] See, e.g., Flores v. Ashcroft, 350 F.3d 666 (7th Cir. Nov. 26, 2003) (in dictum finding that a noncitizen convicted of battery, when the victim was the noncitizen’s spouse, could be used to sustain deportability under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), even though the statute of conviction had no “domestic violence” element).

[35] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc) (Texas child endangerment statute is not a crime of violence).