STEP 1

Identify the “Generic” Definition of the Removal Ground

The grounds of inadmissibility and deportability (which include the definition of an aggravated felony) contain dozens of terms describing crimes, e.g., “crime involving moral turpitude,” “crime of child abuse,” “law…relating to a controlled substance,” “crime of violence,” “burglary,” etc. Each of these terms must have a technical, federal definition, referred to as the “generic” definition. Our first research task is to identify the generic definition of the term that appears in the removal ground with which we are concerned. Federal court or Board of Immigration Appeals case law may define a general term; checking secondary sources can save research time. Some removal grounds reference a federal statute as the definition, in which case we look to federal cases interpreting that statute.

The Supreme Court reviewed possible sources for definitions, including the Model Penal Code, common law, and the law of several states, and finally decided that generic burglary contains these elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The Court found that the term “building or other structure” does not include a vehicle. Taylor v. United States, 495 U.S. 575, 598 (1990) (emphasis added).

Note on subsequent expansion of the definition of burglary. Almost thirty years after Taylor, the Supreme Court revisited this generic definition and held that it includes burglary of a vehicle that is “adapted or customarily used for lodging.” United States v. Stitt, 139 S.Ct. 399 (2018). The Court reviewed its prior decisions on burglary, in Taylor, Mathis, etc., and found that that particular issue had not been presented, and the prior decisions did not conflict with it. Because the new definition does not affect those prior decisions, we will not discuss it further as part of this example.

Identify the minimum conduct prosecuted that violates the statute of conviction

Using the text of the statute of conviction, state case law, or other materials, we identify the minimum conduct required to violate the statute of which our client was convicted. Court decisions may refer to this as the “minimum conduct,” “least acts criminalized,” or “least adjudicated elements.” Remember that we are focusing solely on the minimum conduct that can be or has been prosecuted under the statute, and “ignoring the particular facts of the case.” Mathis, 136 S.Ct. at 2248.

The Supreme Court has cautioned that an immigrant may not simply imagine some theoretical, possible minimum conduct for an offense, but must demonstrate a “realistic probability” that this minimum conduct actually would be prosecuted under the statute. One may prove this by producing one or more cases where someone was found guilty under the statute for committing the particular minimum conduct. One can cite to published or unpublished decisions, their own case, or arguably other materials such as documents from criminal prosecutions or press releases or newspaper articles, that document conviction for non-generic conduct. For further discussion of the realistic probability of prosecution, see Part II, below, and see online practice advisories.

One excellent source of information about a state statute’s minimum conduct is the relevant state jury instruction for the offense. Do an internet search, or work with a criminal defense attorney, to find the instructions. The instructions also may cite to state precedential cases, which are the best authority.

In addition to cases, many circuit courts of appeals have held that an immigrant can demonstrate that a statute is overbroad if the express language of the statute includes conduct that is outside of the generic federal definition. In circuits that have adopted this rule, sometimes referred to as the “express language rule,” no cases or other realistic probability proof is necessary.

The BIA and just a few circuit courts of appeals have declined to adopt the express language rule. See Part II, below. In those jurisdictions, even if the statute describes a specific minimum conduct, the immigrant may need to provide a further showing of realistic probability of prosecution.

Is the crime of conviction defined more broadly than the generic definition?

Here is where we compare the elements of the generic definition with the elements of the client’s conviction. If the generic definition contains all of the elements of the criminal statute, there is a categorical match. Another way to state the test is to say that if there is some way to commit the state offense that would not also commit the generic definition, then there is no categorical match.

If there is a categorical match, the removal ground will apply to every conviction under the statute. The client loses and our analysis is over.

If there is no categorical match, then the statute as whole is overbroad, meaning it reaches conduct not reached by the generic definition. In that case the immigrant will win everything, unless the statute is divisible. We go to Step 2 to determine divisibility.

STEP 2

Is the Criminal Statute Divisible?

This step may appear complex, but stay with it until the example. In Mathis, the Supreme Court affirmed a strict test for when a criminal statute is divisible. The statute must meet all of these criteria:

1. The statutory language must set out multiple discrete statutory phrases in the alternative (i.e., the statute must use the word “or”). But a statute phrased in the alternative is not always a divisible statute.
2. At least one, but not all, of the statutory phrases must describe conduct that is a categorical match to the generic definition.
3. Significantly, these statutory phrases must set out different “elements” of different offenses, not just different means of committing one offense. The test is: if in every case, a jury would have to agree unanimously between these statutory alternatives in order to find the defendant guilty, these are alternative “elements” and the statute is divisible. But if a jury could disagree between the statutory alternatives and still convict the defendant, the statutory alternatives are mere “means” and the statute is not divisible. If the statutory alternatives are means, not elements, then the statute does not set out different offenses. The statute is indivisible (not divisible).

The jury unanimity requirement is a new concept to many immigration advocates, and state law is not always clear as to whether statutory alternatives are means (no juror unanimity requirement) or elements (juror unanimity requirement). In Mathis, the Supreme Court provided instructions on how to determine whether these statutory phrases are elements or means. The Court identified the following sources (see Mathis, 136 S. Ct. at 2256-2257):

State case law. As was the case in Mathis, sometimes there are state cases that rule on whether statutory alternatives have a juror unanimity requirement. You can find these cases through ordinary state law research tools. State model criminal jury instructions, often available on state court system websites, may provide case citations that speak to the juror unanimity question, and thus can be a good place to start research. However, in many instances, state case law does not definitively answer the juror unanimity question, which requires you to continue researching other sources of law.

Statutory language. Sometimes “a statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means).” Mathis, 136 S. Ct. at 2256. Sometimes the statute contains a list of “illustrative examples” preceded by phrases like “including ….” or “such as ….” This language implies that these alternative ways of violating the statute are means, not elements, and that the statute is not divisible.

Sentencing exposure. “If statutory alternatives carry different punishments, then… they must be elements.” Mathis, 136 S. Ct. at 2256. Therefore, the statute is divisible. For example, California first degree burglary, Pen C §§ 459/460(a), has an exposure of up to six years, while second degree burglary, §§ 459/460(b), has an exposure of up to three years. Section 460 is a divisible offense.

Indications from the record of conviction. The Court stated in Mathis that if the above sources of law are inconclusive on the juror unanimity question, a “peek” at the noncitizen’s “record of conviction” may indicate whether the statutory alternatives are means or elements. For example, if a noncitizen’s indictment or charging document simply lists the statutory alternatives (e.g., “did burglarize a building, structure, or vehicle”), then that “is as clear an indication as any” that the alternatives are means rather than elements, and the statute is indivisible. The Court carefully distinguished between this “peek” at the record of conviction at Step 2 (which is for “the sole and limited purpose of determining” whether the statute is divisible) and the different review of the record of conviction at Step 3 (which is to determine of which offense under a divisible statute the person was convicted). Mathis, 136 S.Ct. at 2256-57; see also discussion below.

If the statute is indivisible, the immigrant wins. We do not proceed to Step 3, the modified categorical approach. The regular categorical approach at Step 1 governs, and we already found that the statute is overbroad under that test. When a criminal statute is both overbroad and indivisible, no one who is convicted under it comes within the removal ground. This is true for purposes of deportability, admissibility, and eligibility for relief, and regardless of facts in the record.

STEP 3

The Modified Categorical Approach: Only if the statute is divisible

What evidence can be used to prove this?

In cases where a statute is deemed divisible according to the criteria in Step 2, the modified categorical approach comes into play. In this scenario, immigration judges or officers may examine specific documents from the client’s record, often referred to as the reviewable “record of conviction,” for the sole purpose of determining which offense (from among the elements outlined in the statute) the person was convicted of.

The Supreme Court consistently defines the reviewable record of conviction for a plea-based conviction to include “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.” These are often referred to as the Shepard documents. Courts concur that pre-sentence reports, preliminary hearing transcripts, and police reports are generally not part of the reviewable record unless the defense explicitly stipulated that they contain the factual basis for the plea. For convictions resulting from jury trials, the reviewable record of conviction typically encompasses documents like the charging document and jury instructions. It’s worth noting that there are specific decisions from the Board of Immigration Appeals (BIA) and various Circuit Courts regarding what is included in the reviewable record of conviction for immigration purposes.

However, it’s important to highlight that in 2021, the Supreme Court raised doubts about whether the Shepard constraints are applicable in immigration proceedings as opposed to criminal proceedings, as discussed in Pereida v. Wilkinson.

If the evidence unambiguously identifies the offense for which the person was convicted, the adjudicator will apply the categorical analysis to that specific offense. However, if the evidence is inconclusive, the outcome of the case depends on whether the question at hand pertains to deportability or eligibility for relief:

• The Department of Homeland Security (DHS) bears the burden of proving that a conviction leads to deportability. If the record of conviction under a divisible statute is inconclusive, the individual is not deportable, as DHS cannot meet their burden.
• In Pereida, the Supreme Court settled a circuit split and ruled that an applicant for relief convicted under a divisible statute must produce evidence showing that their conviction under such a statute does not bar them from relief. If the applicant’s evidence is inconclusive, their conviction is considered a bar, rendering them ineligible for that relief.

In Pereida, the Supreme Court also indicated that when the record of conviction is inconclusive, an applicant for relief might be able to use various types of evidence beyond the Shepard documents to meet their burden. While this language can be advantageous to certain relief applicants, ICE might contend that it, too, can employ evidence beyond the Shepard documents to meet its burden in proving that a Lawful Permanent Resident (LPR) convicted under a divisible statute is deportable. Advocates should challenge this interpretation of Pereida.