When a statute is divisible, there is more than one way to be guilty or convicted of that statute. Often times, one of the ways may be troublesome for immigration purposes, while another way to commit the offense will not have an immigration impact.
When a statute is divisible, the court uses what is called a “modified categorical approach” to determine which part of the statute the defendant was convicted under. In order to do this, the court is only permitted to look at certain documents that are called the “record of conviction.”
The Board of Immigration Appeals said as much in In re T-- , 2 I&N Dec 23 (BIA 1944) and in In re S--, 2 I&N Dec 353, 357 (BIA 1945).
The particular documents that are contained in the record of conviction are outlined by the BIA in Matter of Ajami, 22 I&N Dec 949 (BIA 1999). They are:
The indictment or Information
The plea statement
That means that immigration officials should only use those documents in order to figure out what part of the statute a person was convicted under. That can be extremely important for someone who is not a US Citizen.