The discussion in Part A centered on the “pure” categorical analysis for determining the immigration consequences of a specific offense based on the minimum behavior required to be guilty of the offense. Where a statute is broad enough to include various offenses, including some that carry immigration consequences and some that do not, it is referred to as a “divisible” statute. The “modified” categorical analysis permits the reviewing authority to examine a limited set of documents that clearly establish that a prior conviction would trigger carry an immigration penalty. If this limited review of documents fails to unequivocally identify the offense of conviction as one that carries an immigration penalty, then the penalty does not apply.¹³⁴ In terms of immigration consequences, there are several ways that a single criminal code section can be divisible. For example, a code section may contain multiple subsections, some of which involve firearms and therefore trigger the firearms deportation ground, and some of which do not. It may define the crime in the disjunctive, such as sale of a controlled substance, which is an aggravated felony, or (instead of the conjunctive, ‘and’) offer to sell a controlled substance, which is not an aggravated felony. A section may be so broadly or vaguely drawn that it could include different kinds of offenses, such as assault in the fourth degree under RCW 9A.36.041, of which an example is given in the following section.

2. Record of Conviction: Determining the Elements of the Offense

To determine deportability under a conviction-based ground (as opposed to ruling on a discretionary application for residency, or for relief from removal) the immigration court and DHS have some restrictions. The immigration judge in removal proceedings may only consult information in the charging papers (and then only the count that has been pled to or proved); the judgment of conviction; jury instructions; a signed guilty plea; the transcript from the plea proceedings; and the sentence and transcript from sentence hearing. Sources such as a prosecutor’s remarks during the hearing, police reports, probation or “pre-sentence” reports, or statements by the noncitizen outside of the judgment and sentence transcript (e.g., to police or immigration authorities or the immigration judge) may not be consulted.135 A court docket summary prepared by clerical staff may not be consulted.136 Similarly, information from a co-defendant’s case may not be consulted. For example, if a wife was convicted of assault with intent to commit “any felony,” the immigration authorities could not look to her husband’s record of conviction to define the felony.137 If there is insufficient information in the record of conviction to identify the offense of conviction in a divisible statute, the reviewing authority must rule in favor of the immigrant.

Example:

3. Defense Strategy: Charging Papers and Plea Agreements

For information in a criminal charge to be considered in a modified categorical analysis, there must be proof that the defendant pled to or was convicted of the specific charge. Information alleged in a count is not part of the record of conviction absent proof that the defendant specifically pled guilty to that count. A charge coupled with only general proof of conviction under the statute is not sufficient.¹³⁸

A charging paper charging the offense in the language of  the statute is proper and often beneficial to the noncitizen. An original or amended charging paper quoting only the language of the statute can prevent consequences under a divisible statute by being vague. (But see discussion below of BIA’s treatment of dropped charges.) Washington case law appears to allow an information charging a defendant with the crime in the exact language of the statute. ¹³⁹ Presumably such an information clearly states  a crime. ¹⁴⁰ Drafting a plea agreement gives criminal defense counsel the opportunity to create the record of conviction that will be determinative in immigration proceedings. Important information should be affirmatively set out in the plea agreement or colloquy. For example, the Ninth Circuit held that where a plea agreement specified the loss to the victim in the count of conviction was $600, the fact that restitution of over $10,000 was ordered (based on losses alleged in dismissed counts) did not establish the offense as one in which the “loss to the victim” was $10,000 and, thus, the offense was not an aggravated felony under 8 USC 1101(a)(43)(M). ¹⁴¹ See Chapter Ten, Section C1: Fraud Resulting in Loss to Victim of $10,000 or More for more on this ruling. The plea agreement can also be used to delete damaging information that was in the count. Where a charging paper alleges an offense within a divisible statute that carries an immigration penalty, criminal defense counsel should not plead to the count. Counsel can bargain for a substitute charging document or, more easily, correct the record as part of a plea agreement (e.g., “Defendant pleads guilty to fraud of $600”). Counsel can specifically plead to the language of a divisible statute in its entirety, if that is the most beneficial or only possible alternative. If the charge is wrongly phrased in the conjunctive (“and”) while the statute is in the disjunctive (“or”), the defendant should specifically make a plea agreement in the disjunctive. For example “I admit to entry with intent to commit larceny or any felony.” However, if the defendant did not do this, a plea to a charge in the conjuntive does not necessarily prove the multiple acts.¹⁴² Information from the record of conviction should not be used to add in elements that are not part of the offense. The BIA held that a defendant convicted of an assault offense which had no element requiring the use of any weapon, was not deportable under the firearms ground, even though he pled guilty to an indictment alleging an assault with a gun.¹⁴³ However, some courts outside the Ninth Circuit have decided otherwise, especially by considering the age of a victim of a sexual crime, even where age was not an element of the offense. In general, criminal defense counsel should keep the record of conviction as empty of potentially damaging information as is possible. Information from dismissed charges should never be considered in this inquiry. For information in a charge to be evidence of the elements of the offense of conviction, there must be proof that the person specifically pled guilty to or was found guilty by a jury of the charge. The BIA, however, has occasionally referred to dropped criminal charges in its decisions.¹⁴⁴ In a case where a dropped charge would identify a defendant’s plea as being to a section of a divisible statute with adverse immigration consequences, criminal defense counsel should protect the defendant by creating a specific plea agreement showing conviction of a section that does not carry those consequences. The plea agreement will trump other information. Immigration counsel should also aggressively assert the conclusive Ninth Circuit precedent—bolstered by the Supreme Court’s 2005 ruling in Shepard¹⁴⁵—establishing that information in a criminal charge cannot be considered absent proof that the defendant was found guilty of that particular charge.¹⁴⁶

¹³⁴ U.S. v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc), quoting from Taylor v. United States, 495 U.S. 575 (1990). See e.g., Chang v. INS, 307 F.3d 1185 (9th Cir. 2002); Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989).

¹³⁵ See, e.g., Taylor v. U.S., infra n. 247. This doctrine applies across the board in immigration cases and has been upheld regarding moral turpitude (see e.g., Matter of Mena, 7 I. & N. Dec. 38 (BIA 1979); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989)(co-defendant’s conviction is not included in reviewable record of conviction); Matter of Y, 1 I. & N. Dec. 137 (BIA 1941) (report of a probation officer is not included); Matter of Cassissi, 120 I. & N. Dec. 136 (BIA 1963) (statement of state’ attorney at sentencing is not included)); firearms (see e.g., Matter of Madrigal, 21 I. & N. Dec. 323 (BIA 1996)(transcript of plea and sentence hearing is included); Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996)(police report is not included); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996)(admission by respondent in immigration court is not included)). See also Abreu-Reyes v. INS, 350 F.3d 966 (9th Cir. 2003)(withdrawing and reversing Abreu-Reyes v. I.N.S., 292 F.3d 1029 (9th Cir. 2002) to reaffirm that probation report is not part of the record of conviction for this purpose, in accord with ruling in Corona-Sanchez, supra n. 89, 106, 112).

¹³⁶ U.S. v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).

¹³⁷ Matter of Short, 20 I. & N. Dec. 136 (BIA 1989).

¹³⁸ See, e.g., U.S. v. Corona-Sanchez, supra n. 89, 105, 106, 112; infra n. 314; U.S. v. Velasco-Medina, 305

¹³⁹ “[I]t is sufficient to charge in the language of the statute if the statute defines the crime sufficiently to apprise an accused person with reasonable certainty of the nature of the accusation. State v. Grant, 89 Wn.2d 678, 686, 575 P.2d 210 (1978) (citing State v. Royse, 66 Wn.2d 552, 403 P.2d 838 (1965)).” State v. Leach, 113 Wn.2d 679, 686 (Wash., 1989). See also RCW 10.37.050.

¹⁴⁰ “It is undoubtedly the rule in this jurisdiction, as in many others, that it is sufficient, in charging a crime, to follow the language of the statute, where such crime is there defined, and the language used is adequate to apprise the accused with reasonable certainty of the nature of the accusation” State v. Forler, 38 Wn.2d 39, 43 (Wash., 1951); see also State v. Johnson, 56 Wash.2d 700, 355 P.2d 13 (1960); State v. Bowman, 57 Wash.2d 266, 356 P.2d 999 (1960).

¹⁴¹ Chang v. INS, 307 F.3d 1185 (9th Cir. 2002). Conviction of fraud with a loss to the victim of more than $10,000 is an aggravated felony. See Note “Aggravated Felonies.”

¹⁴² Matter of Espinosa, 10 I. & N. Dec. 90, 98 (BIA 1962); U.S. v. Hirsch, 308 F.2d 562, 567 (9th Cir. 1962); in Washington an Information may employ the conjunctive "and" where statute uses "or." State v. Rooney, 2 Wn.2d 17, 97 P.2d 156 (1939); State v. St. Clair, 21 Wn.2d 407, 151 P.2d 181 (1944).

¹⁴³ Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992)

¹⁴⁴ Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651 (BIA 2004). See also Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975); Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965).

¹⁴⁵ Shepard v. United States, 125 S. Ct. 1254 (U.S., 2005) Shepard ruled that police reports could not be considered. The same principle should exclude dropped charges from the “modified categorical analysis.”

¹⁴⁶ E.g., in United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir., 2002), the Court explained what documents are adequate to provide evidence of the elements of the conviction: “…if a defendant enters a guilty plea, the sentencing court may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime. Charging papers alone are never sufficient. However, charging papers may be considered in combination with a signed plea agreement.” Id. at 1211 (internal citations omitted) (emphasis added.) The requirement that charging papers be considered in conjunction with the plea or judgment logically eliminates the use of a dropped information.