18 U.S.C. §16. Crime of violence definedThe term “crime of violence” means- (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 USC 16: Crime of violence defined A person has been convicted of an aggravated felony if the conviction is for a “crime of violence” and the sentence is at least on year. See INA § 101(a)(43)(F). The definition of “crime of violence” is, in turn, defined by 18 U.S.C. § 16. Aggravated felonies constitute both a ground of deportability and a bar to several forms of relief in removal proceedings See, e.g., INA §§ 237(a)(2)(A)(iii); 240A(a). The first subsection of the crime of violence definition at 18 U.S.C. § 16(a) provides that “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another” is a deportable offense if the sentence is at least one year. The second subsection states that a crime of violence includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force may be used in the course of committing the offense.” 18 U.S.C. § 16(b). This section swept in offenses that involved no violent force, such a burglary or evading the police. The Supreme Court had previously held that a similar statute was unconstitutional in Johnson v. United States, 135 S. Ct. 2551 (2015). In Sessions v. Dimaya SCOTUS issued a decision on April 17, 2018, holding that the second clause of the definition of “crime of violence” as used in the definition of an aggravated felony is unconstitutionally void for vagueness.

STEP 1 Identify the “Generic” Definition of the Removal Ground The grounds of inadmissibility and deportability (which include the definition of an aggravated felony) contain dozens of terms describing crimes, e.g., “crime involving moral turpitude,” “crime of child abuse,” “law…relating to a controlled substance,” “crime of violence,” “burglary,” etc. Each of these terms must have a technical, federal definition, referred to as the “generic” definition. Our first research task is to identify the generic definition of the term that appears in the removal ground with which we are concerned. Federal court or Board of Immigration Appeals case law may define a general term; checking secondary sources can save research time. Some removal grounds reference a federal statute as the definition, in which case we look to federal cases interpreting that statute. The Supreme Court reviewed possible sources for definitions, including the Model Penal Code, common law, and the law of several states, and finally decided that generic burglary contains these elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The Court found that the term “building or other structure” does not include a vehicle. Taylor v. United States, 495 U.S. 575, 598 (1990) (emphasis added). Note on subsequent expansion of the definition of burglary. Almost thirty years after Taylor, the Supreme Court revisited this generic definition and held that it includes burglary of a vehicle that is “adapted or customarily used for lodging.” United States v. Stitt, 139 S.Ct. 399 (2018). The Court reviewed its prior decisions on burglary, in Taylor, Mathis, etc., and found that that particular issue had not been presented, and the prior decisions did not conflict with it. Because the new definition does not affect those prior decisions, we will not discuss it further as part of this example. Identify the minimum conduct prosecuted that violates the statute of conviction Using the text of the statute of conviction, state case law, or other materials, we identify the minimum conduct required to violate the statute of which our client was convicted. Court decisions may refer to this as the “minimum conduct,” “least acts criminalized,” or “least adjudicated elements.” Remember that we are focusing solely on the minimum conduct that can be or has been prosecuted under the statute, and “ignoring the particular facts of the case.” Mathis, 136 S.Ct. at 2248. The Supreme Court has cautioned that an immigrant may not simply imagine some theoretical, possible minimum conduct for an offense, but must demonstrate a “realistic probability” that this minimum conduct actually would be prosecuted under the statute. One may prove this by producing one or more cases where someone was found guilty under the statute for committing the particular minimum conduct. One can cite to published or unpublished decisions, their own case, or arguably other materials such as documents from criminal prosecutions or press releases or newspaper articles, that document conviction for non-generic conduct. For further discussion of the realistic probability of prosecution, see Part II, below, and see online practice advisories. One excellent source of information about a state statute’s minimum conduct is the relevant state jury instruction for the offense. Do an internet search, or work with a criminal defense attorney, to find the instructions. The instructions also may cite to state precedential cases, which are the best authority. In addition to cases, many circuit courts of appeals have held that an immigrant can demonstrate that a statute is overbroad if the express language of the statute includes conduct that is outside of the generic federal definition. In circuits that have adopted this rule, sometimes referred to as the “express language rule,” no cases or other realistic probability proof is necessary. The BIA and just a few circuit courts of appeals have declined to adopt the express language rule. See Part II, below. In those jurisdictions, even if the statute describes a specific minimum conduct, the immigrant may need to provide a further showing of realistic probability of prosecution. Is the crime of conviction defined more broadly than the generic definition? Here is where we compare the elements of the generic definition with the elements of the client’s conviction. If the generic definition contains all of the elements of the criminal statute, there is a categorical match. Another way to state the test is to say that if there is some way to commit the state offense that would not also commit the generic definition, then there is no categorical match. If there is a categorical match, the removal ground will apply to every conviction under the statute. The client loses and our analysis is over. If there is no categorical match, then the statute as whole is overbroad, meaning it reaches conduct not reached by the generic definition. In that case the immigrant will win everything, unless the statute is divisible. We go to Step 2 to determine divisibility. STEP 2 Is the Criminal Statute Divisible? This step may appear complex, but stay with it until the example. In Mathis, the Supreme Court affirmed a strict test for when a criminal statute is divisible. The statute must meet all of these criteria: The jury unanimity requirement is a new concept to many immigration advocates, and state law is not always clear as to whether statutory alternatives are means (no juror unanimity requirement) or elements (juror unanimity requirement). In Mathis, the Supreme Court provided instructions on how to determine whether these statutory phrases are elements or means. The Court identified the following sources (see Mathis, 136 S. Ct. at 2256-2257): State case law. As was the case in Mathis, sometimes there are state cases that rule on whether statutory alternatives have a juror unanimity requirement. You can find these cases through ordinary state law research tools. State model criminal jury instructions, often available on state court system websites, may provide case citations that speak to the juror unanimity question, and thus can be a good place to start research. However, in