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 *1.
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.
