The Board explained that in a situation in which the statute of conviction includes some offenses that are CIMTs and some offenses that are not, adjudicators must first determine whether a statute is “divisible.” If the statute is divisible, adjudicators may apply the “modified categorical approach.” The Board cited to both the Descamps, 133 S.Ct. at 2281, 2283, and its own precedent decision in the Matter of Chairez, 26 I&N Dec. at 819-20, for precedent on determining divisibility. Citing to these two cases, the Board explained when a statute is “divisible” such that it is amenable to a modified categorical inquiry:
1. The statute lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of “elements,” more than one combination of which could support a conviction; and2. At least one, but not all, of those listed offenses or combinations of disjunctive elements is a categorical match to the relevant generic standard.
In short, there are two ways in which a statute may be divisible. First, the statute may list several discrete offenses in the disjunctive (e.g., offense “x,” “y,” and “z”). Second, the statute may list a single offense (“x”) but several disjunctive elements for satisfying “x” (meaning different ways of committing offense “x”). So long as the element to satisfy the offense would have to be proven in order to sustain a conviction to the exclusion of some or all of the other elements, the statute may be considered divisible. If jury unanimity would not be required with respect to one of the elements, the statute may not be considered divisible.
Under the modified categorical approach, adjudicators may look at the record of conviction to determine which discrete offense a person committed or the means by which the person committed the single offense under the statute. After determining the offense or means that lead to the conviction, adjudicators may then use the categorical inquiry to determine whether the offense was a CIMT. It is important to note, however, that the modified categorical approach does not allow for the consideration of evidence extrinsic to the record of conviction, as was permitted by the now-vacated decision in Silva-Trevino I.