ARTICLES

The Taylor Analysis and Taylor Modified Categorical Approach - When does the crime fit the removal ground?

By Jonathan D. Montag

I. INTRODUCTION

In immigration court in removal proceedings against an alien convicted of a crime, an important step in proceedings is to determine removability. The government charges removability under any one of many criminal removal grounds at INA 212 or INA 237. If the conviction matches the ground and the conviction can be proved, or the alien admits to the conviction, then the alien is found removable and the case moves on to the relief phase. The government does not always get it right. Sometimes they match the wrong removal ground to the crime and sometimes there is no removal ground for a crime - there are still a few crimes left for which an alien is not removable.

One significant area of difficulty in assigning a removability ground to crime is when the elements of a crime do not clearly make out a particular removal ground. It is only when the conduct of the alien committing a crime provides additional elements to the crime that a specific charge of removability is discoverable. Fortunately for the alien - your client - the rules about what outside elements can be used to make out a ground of removability, the Taylor Analysis and the Taylor Modified Categorical Approach, constrain the government and sometimes provide great advantage to your client
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II. The Taylor Analysis

The Taylor Analysis takes its name from Taylor v. United States, 495 U.S. 575 (1990).

The Taylor Analysis, as laid out in Taylor, states:

The sentencing court must generally adopt a formal categorical approach in applying the enhancement provision, looking only to the fact of conviction and the statutory definition of the predicate offense, rather than to the particular underlying facts. That approach is required, since ... an elaborate factfinding process regarding the defendant's prior offenses would be impracticable and unfair. The categorical approach, however, would still permit the sentencing court to go beyond the mere fact of conviction in the narrow range of cases in which the indictment or information and the jury instructions actually required the jury to find all of the elements of [a crime] even though the defendant was convicted under a statute defining [a crime] in broader terms.
Taylor v. United States, 495 U.S. 575 (1990).

The Taylor case refers to this approach as the categorical approach, a synonym for the Taylor Analysis. Taylor was not an immigration case. Rather, it was a criminal sentencing case. The sentencing statute afforded enhanced punishment for a person who had a prior burglary conviction. The challenge to the court was how to interpret the word, "burglary." The court decided to use a generic definition of "burglary" so as not to punish persons only in states where the word "burglary" appeared in the statute of conviction or to punish persons who may have been convicted of a crime called burglary, but which was not burglary under a generic definition. For there to be a conviction for "burglary" for sentencing enhancement purposes, all elements of the generic definition of burglary must be elements of the crime of which the defendant was convicted. The court in Taylor remanded the case to determine if the crime for which the defendant was convicted matched the generic definition of burglary.

The Taylor Analysis, even before Taylor, applied in the immigration context. Thus, to be removable, a court looks only to the fact of conviction and the statutory definition of the criminal offense. Often, the approach does not simply address removability, but whether an alien is an aggravated felon, a designation with serious consequences, principally barring relief from removal in most cases and causing the imposition of an enhanced punishment if convicted of returning illegally after removal. See U.S.S.G. 2L1.2(b) and INA 274(b)(2). The BIA accepts and applies the Taylor Analysis. See, inter alia, Matter of B--, 21 I. & N. Dec. 287, 289 (BIA 1996) (ruling that under 18 U.S.C. 16, "we look to the statutory definition, not the underlying circumstances of the crime"); Matter of Bart, 20 I. & N. Dec. 436, 438 (BIA 1992) (ruling that an element of an offense either is expressly articulated in the statute or required by state decisions to obtain a conviction). Matter of Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992) (holding that where the elements of an assault statute did not include use of a weapon, such evidence had no bearing on the nature of the offense) [discussed further, infra]. In fact, the approach was not created in Taylor, and had been used by the BIA for decades before Taylor. See, inter alia, Matter of B-, 4 I. & N. Dec. 493, 496 (BIA 1951) (The courts have consistently held that voluntary manslaughter involves moral turpitude and that involuntary ordinarily does not. We are not permitted to go behind the record to determine just what transpired. Mylius v. Uhl, 203 Fed. 152 (S.D., N.Y., 1913). We must determine in each case that which must be shown to establish the guilt of the alien. Accordingly, the definition of the crime must be taken at its minimum. Under the rule laid down in Mylius v. Uhl (supra), our hands are tied in a situation where the statute includes crimes which involve moral turpitude as well as crimes which do not inasmuch as an administrative body must follow definite standards, apply general rules, and refrain from going behind the record of conviction).

III. The Modified Categorical Approach

The Taylor Analysis alone does not address the problem of interpreting a conviction because not all criminal statutes address only one crime. Statutes that include more than one crime are called divisible statutes. A notable one in the California Health and Safety Code where a criminal statute states:

Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years.

Cal. Health & Safety Code § 11360.

TIn this remarkable statute, the following actions regarding drugs can lead to a conviction: Transporting
Importing
Selling
Furnishing
Administering
Giving away
Offering to transport
Offering to import

Thus, eight people can be convicted of Cal. Health & Safety Code § 11360 after having done any of at least eight different things. Some of the crimes may be aggravated felonies, others controlled substance violations but not aggravated felonies, and others not removal offenses at all. The courts have addressed the issue of applying the Taylor Analysis to this type of crime by a modification of the Taylor Analysis. Hence, the Taylor Modified Categorical Approach, or, simply, the Modified Categorical Approach. The approach requires determining of which of the divisible sections of the statute the alien was convicted. The concept, like the Taylor Analysis itself, is not new in the removal context, having been employed for decades, see, inter alia, Wadman v. INS, 329 F.2d 812, 814 (9th Cir. 1964), but cases involving the approach have mushroomed since 1997 when the definition of an aggravated felony expanded dramatically. As a consequence, many more aliens convicted of aggravated felonies faced removal mostly without the right to relief and faced long sentences for returning after deportation, U.S.S.G. § 2L1.2(b) and INA § 274(b)(2). The prospect of permanent banishment or a long prison sentence based on the new aggravated felony grounds prompted litigation that was not necessary previously, which explains the growth of this kind of litigation.

The concept of the Taylor Analysis and Modified Categorical Approach is straightforward in concept but amazingly complicated in practice. This may be because judges are reticent to terminate removal proceedings when an alien has been convicted of a crime, but the elements of the crime cannot be matched exactly to a removal statute. An example of this reticence is the Cal. Health & Safety Code § 11360 section, the divisibleness of which is obvious. The Ninth Circuit Court of Appeals determined that a § 11360 conviction is ipso facto an aggravated felony without even applying a modified Taylor Analysis. United States v. Lomas, 30 F.3d 1191, 1194 (U.S. App. , 1994). The Court then repeated the error in United States v. Estrada-Torres, 179 F.3d 776, 781 (9th Cir. 1999). In 2001, the Court began the process of fixing this mistake in United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001). However, even in this case, the Court did not unequivocally state that a modified Taylor Analysis must be used to examine which of the eight crimes was committed, but instead noted that because the court had already held in other cases that solicitation offenses (in § 11360 being “offering to transport” or “offering to import”) were not drug crimes, the case should be remanded to determine if the crime in the case was a solicitation crime.

Because of the ambiguity, the INS and U.S. Attorneys continue to assert that unless there is evidence that the crime is a solicitation offense, the crime is an aggravated felony. More alarmingly, immigration judges, the BIA, and district court judges continue to buy the argument notwithstanding the obviousness that § 11360 is a divisible statute with far more than two divisions – solicitation and drug trafficking crimes. The Ninth Circuit has yet to publish a decision on this issue. There is an unpublished decision on the issue where the Court accepts that simple possession offenses are also found in this divisible statute . Alvarado-Ochoa v. Ashcroft, 2003 U.S. App. LEXIS 16293 (Ninth Cir. August 6, 2003) (Unpublished).

IV. What to look at?

Another difficulty is that the courts have not been clear as to what a court can look at to determine which of the crimes in a divisible statute the alien committed. The Ninth Circuit held in United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001), “When a statute "reaches both conduct that would constitute a crime of violence and conduct that would not," Ye v. INS, 214 F.3d 1128, 1133 (9th Cir. 2000), we have interpreted Taylor's edict to include examination of "documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes[, ] such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings," Casarez-Bravo, 181 F.3d [1074] at 1077 [(9th Cir. 1999)] (internal quotation marks and citations omitted). "However, if the statute and the judicially noticeable facts would allow the defendant to be convicted of an offense other than that defined as a qualifying offense by the guidelines, then the conviction does not qualify as a predicate offense." Id.”

The Taylor case itself indicated that looking at other sources other than simply the statute and the conviction document may be appropriate. “The categorical approach, however, would still permit the sentencing court to go beyond the mere fact of conviction in the narrow range of cases in which the indictment or information and the jury instructions actually required the jury to find all of the elements of generic burglary even though the defendant was convicted under a statute defining burglary in broader terms.” Taylor v. United States, 495 U.S. 575 (1990) (emphasis added). From reading Taylor, one might assume that a court is limited to a criminal statute, a conviction document, an indictment or information, and jury instructions in deciding for what the alien was convicted. Such was the approach a district court took soon after Taylor in United States v. Sweeten, 933 F.2d 765, 767 (9th Cir. 1991). In Sweeten, not itself an immigration case, an alien was being sentenced under a firearms statute. At bar was whether a prior conviction was a violent crime or not. The government submitted a document filed with the criminal court in the prior matter relating to amending the sentencing document in the case. The district court did not consider this document, considering it outside the items which it could consider according to the Taylor case. The Ninth Circuit Court of Appeals rejected that reasoning, writing, “We therefore hold that it is error for a district court ... to restrict its consideration to the original judgment of conviction and corresponding criminal statute if also presented with documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes.” United States v. Sweeten, 933 F.2d at 769-770.

A. Judicially noticeable facts

The issue then became what are the “judicially noticeable facts” a court can consider. The record of conviction is clearly game. The record of conviction includes “the indictment or information, plea, verdict or judgment, and sentence.” See, Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993) (examining indictment); Wadman v. INS, 329 f.2d 812, 814. In a case with a guilty plea, the plea transcript is game. United States v. Bonat, 106 F.3d 1472, 1476 (9th Cir. 1997)(considering enhancement under 18 U.S.C. § 924(e)).

B. Presentence Reports

A matter of contention is whether a court can look at a presentence report (PSR). As discussed in Chang v. INS, 307 F.3d 1185, 1191 (9th Cir. 2002), the Ninth Circuit was confused on this matter. Chang dealt with an aggravated felony definition, INA § 101(a)(43)(M)(i), wherein a fraud or deceit with a loss to the victim in excess of $10,000 was an aggravated felony. The PSR indicated that the amount of loss to the victim was $30,000 or more, while the conviction record itself stated that the loss was $605.30. The Chang court wrote:

We first note that there is noticeable tension in our recent caselaw concerning whether the INS may ever rely on presentence reports to develop the factual basis of a convicted offense. On the one hand, we recently stated in an en banc opinion that "a presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition." Corona-Sanchez, 291 F.3d [1201] at 1212 [9th Cir. 2002] (citations omitted). On the other hand, a panel decision issued just four days after Corona-Sanchez concluded that resort to a PSR was appropriate to determine whether convictions for bribery and subscribing to a false tax return satisfied the $ 10,000 loss requirement of § 1101(a)(43)(M)(i). Abreu-Reyes v. INS, 292 F.3d 1029, 1034 (9th Cir. 2002) ("Admitting the evidence of the amount of loss to the victim contained in the presentence report was not fundamentally unfair, and the IJ properly relied on the pre-sentence report to determine Abreu-Reyes's removability."). We find, though, that we need not resolve this tension here, for no case of ours has held that reliance on a PSR, in the circumstances that the BIA has countenanced here, is permissible.

The Chang case does assert that if there is a conflict between the plea agreement and the presentence report, the plea agreement prevails:

Even if we believed it generally appropriate to satisfy the elements of an aggravated felony definition with information concerning non-convicted offenses in a PSR, it would still be improper to rely on statements in Chang's PSR that contradict the explicit language in his plea agreement. Abreu-Reyes concluded that "the INS may rely on a PSR to determine the loss to the victim when other evidence in the record, i.e., the judgment of conviction, does not provide a loss figure. Id. at 1030-31. Here, the plea agreement does clearly provide a loss to the victim amount. Allowing an IJ or the INS to rely on statements or facts in a PSR that relate to dismissed counts to trump the loss amount agreed to by both an alien defendant and the government in a plea agreement would surely lead to sandbagging of many non-citizen criminal defendants. In light of the explicit terms of the plea agreement regarding the amount of loss to the victim of Chang's conviction we conclude that the BIA incorrectly relied on information dealing with unconvicted offenses in Chang's PSR to establish that his bank fraud conviction satisfied the elements of § 1101(a)(43)(M)(i)' s aggravated felony definition.

In contradiction to Abreu-Reyes is Corona Sanchez, supra. The issue in Corona-Sanchez was to determine the elements of the crime an alien committed to see if they met a definition of an aggravated felony when the criminal statute was “over-broad” meaning a divisible statute. The methodology was described as follows:

When the statute of conviction does not facially qualify as an aggravated felony under federal sentencing law, Taylor allows "the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of [the generic offense]." 495 U.S. at 602. To that end, courts may examine the record for "documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes." Rivera-Sanchez, 247 F.3d at 908 (citation and internal quotation marks omitted). We have labeled this the "modified categorical approach." Ye, 214 F.3d at 1133. The idea of the modified categorical approach is to determine if the record unequivocally establishes that the defendant was convicted of the generically defined crime, even if the statute defining the crime is overly inclusive. For example, in the case of a jury trial, the charging document and jury instructions from the prior offense may demonstrate that the "jury was actually required to find all the elements" of the generic crime. Taylor, 495 U.S. at 602. Similarly, 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. See United States v. Bonat, 106 F.3d 1472, 1476-78 (9th Cir. 1997). Charging papers alone are never sufficient. United States v. Parker, 5 F.3d 1322, 1327 (9th Cir. 1993). However, charging papers may be considered in combination with a signed plea agreement. United States v. Sweeten, 933 F.2d 765, 767, 769-70 (9th Cir. 1991).

Corona-Sanchez, at 1211

Specifically addressing presentence reports, the Corona-Sanchez court wrote:

The only document presented to the district court was the presentence report. When the presentence report identifies the statute of conviction and the defendant does not controvert it, the presentence report is sufficient evidence to establish that the prior conviction was for the statute listed in the report. United States v. Romero-Rendon, 220 F.3d 1159, 1162-65 (9th Cir. 2000). However, we have not extended this rule from the relevant inquiry under Taylor's true categorical approach -- i.e., what is the statute of conviction? -- to the relevant inquiry under the modified categorical approach -- i.e., of what elements was the defendant convicted? Instead, we have held that “a presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition. See United States v. Franklin, 235 F.3d 1165, 1172 (9th Cir. 2000); see also United States v. Potter, 895 F.2d 1231, 1237-38 (9th Cir. 1990).

Corona-Sanchez, at 1211-1212.

The Ninth Circuit Court of Appeals recently more unambiguously concluded that the presentence report cannot be used in the Modified Categorical Approach. In Lara-Chacon v. Ashcroft, 2003 U.S. app. LEXIS 20736 (9th Cir. October 10, 2003), the Court wrote, “We conclude that the BIA erred by relying solely on the PSR [presentence report] to demonstrate the elements of [the] conviction.” Lara-Chacon, at 16. The Court distinguished Abreu-Reyes, because it was not a Modified Categorical Approach case, but rather a case to determine the loss to a victim. The subtle distinction is this. In Lara-Chacon, an alien was convicted of money laundering. The PSR indicated that the crime was actually a drug trafficking crime. The money laundering crime definition also contained words cross-defined as including drug trafficking as a divisible element. Applying the Modified Categorical Approach, and excluding the PSR, the Lara-Chacon court concluded that the government could not prove up the drug trafficking crime aggravated felony allegation. In contrast, in Abreu-Reyes, an alien was convicted of a crime involving bribery to obtain federal funds. At issue was whether the loss to the government exceeded $10,000. This was not an element of the crime, but rather of the aggravated felony ground. To find the crime to be an aggravated felony, the court had to first determine whether the elements of the conviction for bribery matched the elements of a fraud or deceit. To do this involved a Taylor Analysis. However, determining the loss to the victim was a separate inquiry only after there was a determination that the crime was one of fraud or deceit. The loss to the victim was not an element of a crime that must be met by the alien’s actual conviction – at least this is how the Lara-Chacon court saw it (in dicta).

V. Implying divisibility

There is one other scenario that makes the analysis difficult despite the hundreds of published cases that describe and employ it. The question is what to do with cases, not where there is a divisible statute, but rather where the alien was convicted of a crime that could be a removable offense or an aggravated felony, but one necessary element is not expressly mentioned in the statute. A typical offense that presents this problem is a conviction for assault with a deadly weapon without specifying the weapon, and the government charges the alien with deportability for a firearms offense. Were a statute to read something like, “It is illegal to assault a person with a deadly weapon such as a firearm or any other matter that can be deadly,” then the statute would be transformed into a divisible one and the Modified Categorical Approach could be used. The inquiry would be whether in the judicially noticeable facts is an indication that a firearm was used so as to match the elements of a firearms offense ground of deportability. It should be clear that adding these elements does not really change the reach of the criminal statute because no one is either included or excluded as a result but it does change the reach of the removal groun

Strictly applying the Taylor Analysis in the assault/firearm context, the BIA determined that an assault without specification what weapon the alien used for the assault could not be considered a firearms offense. Matter of Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992). In Matter of Perez-Contreras, the alien shot someone in the arm with a gun. He was charged with deportability for a firearms offense. The BIA, looking at the generic crime, determined the crime was not a firearms
offense, writing, “No element of the crime to which he pled relates to the use of any weapon. Although the criminal information states that the respondent used a pistol, he was not charged with use of a pistol, nor did he plead guilty to such use. He therefore cannot be considered to have been ‘convicted’ of a firearm offense and is not deportable under section 241(a)(2)(C) of the Act.”

Similarly rejecting implying elements to a crime is an old BIA decision regarding moral turpitude, Matter of G-, 8 I. & N. Dec. 315 (BIA 1959), concerning whether a conviction for violating 8 U.S.C. § 1001 was a crime of moral turpitude. At that time, the elements of the crime were making false writings knowing them to be false in a matter involving the United States. Absent among the elements of the crime was an element of materiality. The BIA had earlier decided that materiality was necessary for a crime to be a crime of moral turpitude in a similar law. The BIA declined to add the element in the statute by implication to essentially creating something like, “It is illegal to knowingly make a false statement and the statement is material or not material,” and applying the Modified Categorical Approach. It should be clear again that adding these elements does not really change the reach of the criminal statute because no one is either included or excluded as a result while increasing the reach of the removal ground. Rather than do this, the BIA decided that there was no element of materiality and the BIA would not impose one. The BIA declined to do this even though materiality was a judicially imposed element in the circuit in which the crime was committed and thus there was an actual finding of materiality.

These two cases indicate that the courts should not write in elements which do not exist on the face of the statute. A problematic modern situation where this issue is confronted is a battery conviction under Cal. Penal Code § 242. Immigration courts routinely find such a conviction is a crime of domestic violence when perpetrated against a family member or girlfriend. It may seem these courts are adding elements, something like, “It is illegal to batter a person, that person being a stranger, or a wife, or a girlfriend,” and then applying the Modified Categorical Approach to the statute. However, this is most often not the case as the court relies on the sentencing statute for the battery to find the domestic violence element, Cal. Penal Code § 243(e)(1) (When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($ 2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment.) See, Mascardo v. Ashcroft, 71 Fed. Appx. 715, 716 (9th Cir. 2003) (Unpublished).

Based on these cases an observations, it seems that the proper rule is that courts may look at judicially recognizable facts when trying to determine what crime was actually committed in relation to a divisible statute, but cannot read divisibility into a statute by implication to find removability or an aggravated felony. One reason not to is that it would gut the Modified Categorical Approach because any desired element could be read into a statute this way. For example, were Congress to decide that chewing gum while committing a crime is a removable offense, chewing gum could be written into any criminal conduct. Added to a crime like theft, for example, could be something like, “It is illegal to steal and when stealing to be chewing gum or not chewing gum.” With chewing gum now a divisible element of the crime, the Modified Categorical Approach could then find removability. The underlying conduct, as long as it is among the judicially noticeable facts, could then always serve as a basis for removability, notwithstanding Taylor’s hostility to that outcome.

Looked at this way, including an element by implication seems patently illegitimate. However, sometimes a crime seems to compel reading in an element. For example, consider the crime of sexual battery at Cal. Penal Code § 243.4(a), which states:

Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.

Suppose an alien is convicted of this crime and committed it against a minor. Reading the elements of age into the crime, something like "and the victim is a minor or not a minor," would then allow the crime to be amenable to the Modified Categorical Approach, and a potential finding*2 of sexual abuse of a minor, an aggravated felony. INA 101(a)(43)(A). Should a court properly refrain from reading in an element by implication, and thereby applying the straight Taylor Analysis - looking only to the fact of conviction and the statutory definition of the predicate offense - to the elements of the crime should lead to the conclusion that an alien who is found guilty of this crime, even if judicially noticeable facts indicate the victim was a minor, cannot be found to be an aggravated felon because of sexual abuse of a minor. One can see how a judge might be reticent to allow such an outcome despite the long pedigree of the Taylor Analysis.

VI. CONCLUSION

When matching a crime to a removability ground, according to the Taylor Analysis, a court must look only to the fact of conviction and the statutory definition of the criminal offense to see if it matches a ground of removability. Only if there is a match of the elements can removability be found. When a criminal statute is divisible, a court can look at judicially noticeable facts to find exactly what the elements of the crime were. A court should not imply elements that are not actually in the statute because by so doing any conviction can be turned into one requiring the Modified Categorical Approach and underlying conduct, if among the judicially noticeable facts, could serve as the basis for removability – contrary to the teaching of Taylor.

*1The analysis in this article is limited to Ninth Circuit law. Back to Top

*2 Other reasons should also be raised to preclude such a finding. See, Matter of Crammond, 23 I. & N. Dec. 9 (BIA 2001) (vacated on jurisdictional grounds, 23 I. & N. Dec. 179). The BIA reversed its holding in Matter of Crammond in Matter of Small, 23 I. & N. Dec. 448 (BIA June 4, 2002).




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