The U.S. Court of Appeals for the Ninth Circuit jumped into the minutia of crimmigration law with a recent decision on a critically important topic: how to distinguish between divisible and indivisible statutes. Rendon v. Holder, No. 10-72239, slip op. (9th Cir. Aug. 22, 2014). Judge Reinhardt issued the court’s opinion.
This case involved an LPR who was convicted of second-degree burglary in California. The BIA found that his conviction, pursuant to Cal. Penal Code § 459, constituted an attempted theft offense type of aggravated felony under INA § 101(a)(43)(U). In relevant part, the California burglary statute punishes “[e]very person who enters any…vehicle…, when the doors are locked, …with intent to commit grand or petit larceny or any felony….” Analyzing this language, the BIA concluded that California’s burglary statute was divisible. The BIA therefore used the modified categorical approach of statutory interpretation to conclude that the migrant had been convicted after entering with intent to commit larceny, thus constituting an attempted theft offense.
The Ninth Circuit disagreed with the BIA’s method for determining that this was a divisible statute. In a long line of cases, the Supreme Court has made it quite clear that courts are to figure out whether a person has been convicted of a removable offense by looking only at the elements of the offense for which the person was convicted. Courts cannot consider what a person did that eventually led to a conviction. They look only to the statute of conviction. This makes sense for a number of reasons. First, in a criminal law world characterized by massive plea bargaining (roughly 95% of convictions these days result from pleas with the rest coming from trials), it is routine for people to be convicted of crimes that are different than what they actually did. Second, the Sixth Amendment requires that a jury (or in the plea context, a judge) decide that there are sufficient facts proven to convict a defendant. As a matter of law, a defendant is deemed to have been convicted of those facts and nothing more.
The method of statutory interpretation that hones in on the elements of a statute of conviction is called the categorical approach. A variant that allows courts to consider a small group of documents outside the statutory text is called the modified categorical approach. In Descamps v. United States, 133 S. Ct. 2276 (2013) (which I blogged about here), the Court reiterated that the default approach courts must use is the categorical approach. Courts should use the modified categorical approach only when the statute of conviction is “divisible,” that is, it “‘lists multiple, alternative elements, and so effectively creates ‘several different…crimes.’” Id. at 2285 (quoting Nijhawan v. Holder, 129 S. Ct. 2294, 2303 (2009)). This sounds straightforward enough, except that sometimes statutes contain alternative “means” of commission. A crime with alternative elements can be divided into “functionally separate crimes,” thus it’s a divisible statute. Rendon, No. 10-72239, slip op. at 11. A statute with alternative means of committing the crime, in contrast, is indivisible. Id.
After Descamps, courts were left trying to thread a line between alternative elements and alternative means of committing a crime. The BIA did this earlier this year in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), which I wrote about at the time. The Ninth Circuit’s approach here largely follows the BIA’s position.
The prosecution has to prove elements and means, but the key difference between an element and a means of commission, the Ninth Circuit explained, is jury unanimity. The jury must unanimously agree that the defendant committed every element of a crime, but it does not have to agree on every means of committing a crime. Rendon, No. 10-72239, slip op. at 12. As the court put it, “Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.” Id. at 13-14. If state law doesn’t require unanimous agreement, jurors can disagree as to how a defendant violated a criminal statute and still convict. A later immigration court or sentencing court, however, can’t know what the defendant was found, as a matter of law, to have done. Id. at 13.
California’s burglary statute requires an entry into a locked vehicle (or other structures irrelevant to this case) with the intent to commit one of multiple crimes (larceny or “any felony). The statute “does not require that the prosecution prove and the jury unanimously find that the defendant intended to commit any particular offense following entry. Rather, it is sufficient that the defendant had the requisite intent to commit larceny or any felony, whether or not the jurors disagree regarding the particular offense the defendant intended to commit.” Accordingly, the court concluded that the California statute is indivisible. Because the statute is indivisible, the immigration judge and BIA improperly used the modified categorical approach. Id. at 18.
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