These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
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modified categorical approach
The Board of Immigration Appeals has determined that a plea transcript may be consulted under the modified categorical approach when a defense counsel provides a factual basis for a plea, the defendant assents, and the basis corresponds to the one of the alternate ways of violating the statute.
The full text of Matter of Cancinos-Mancio can be found here:
The Ninth Circuit has determined that a Nevada drug statute is divisible with respect to the identity of the controlled substance involved in the offense.
The full text of United States v. Figueroa-Beltran can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/27/16-10388.pdf
The Eleventh Circuit has concluded that a Florida drug possession statute is divisible with respect to the identity of the controlled substances criminalized by the statute. The court examined state case law interpretations of the statute and jury instructions to conclude that the substances criminalized by the statute are alternative elements of the statute.
The full text of Guillen v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201712247.pdf
The Eighth Circuit has determined that Iowa minutes of evidence are not sufficiently reliable documents to be admitted under the Supreme Court's decision in Shepard v. United States. Thus, a court may not consider the minutes of evidence as part of the modified categorical approach, unless the defendant expressly admits to the contents of the minutes as part of the plea proceeding.
The full text of United States v. Dittmar can be found here:
In a decision on criminal sentencing enhancements, the Supreme Court has clarified what qualifies as an "element" of a crime, as opposed to a "means" of committing a crime. "'Elements' are the 'constituent parts' of a crime’s legal definition—the things the 'prosecution must prove to sustain a conviction.' At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty."
To determine if a fact is an element, an adjudicator may look to the statutory text, as well as state case law and jury instructions. The Court noted that if the statutory alternatives carry different punishments, they must be elements.
If these sources do not clearly answer the question, an adjudicator may look at certain documents in the record of conviction - such as the charging document - to determine the elements of the statute. Typically, any facts charged in the alternative in a charging document will NOT be considered elements. Conversely, an indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.
Most interesting perhaps is the Court's discussion of what an adjudicator should do if all of these sources do not shed light on whether a fact is an element or a means. "Of course, such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy 'Taylor’s demand for certainty' when determining whether a defendant was convicted of a generic offense." This reference to certainty suggests that any ambiguity regarding whether a fact is an element or a mean should be construed in favor of the criminal defendant (or the immigration petitioner). Notably, footnote 2 in the decision clearly states that the decision's analysis applies to immigration proceedings as well.
The full text of Mathis v. United States can be found here:
