When is a penal statute "divisible" and thus susceptible to review of an individual's record of conviction for purposes of determining deportability? The Supreme Court held in Descamps v. United States, 133 S. Ct. 2276 (2013) that a statute is divisible if it contains an element that may be satisfied by any one of multiple alternatives enumerated in the statute, at least one of which meets a federal generic definition and at least one of which does not. That decision, however, does not answer whether to be divisible a judge or jury must unanimously agree on which of the alternatives was committed in a specific case. Attorney General Loretta E. Lynch took jurisdiction over cases of Martin Chairez-Castrejon and Vera Sama to weigh in on that question.
Attorney General Holder vacated Attorney General Mukasey's 2008 decision to authorize an unprecedented factual inquiry to determine whether a conviction involved moral turpitude. In doing so, he recognized that five circuit courts of appeal had rejected the reasoning of that decision (while two had deferred to it). He also recognized the Supreme Court has repeatedly emphasized that convictions must be judged by their legal elements, not the alleged facts that led to them.