Immigration · Primary-source case analysis

Descamps: An Indivisible Statute Does Not Permit a Record-Based Elements Rewrite

By Aneeta Mishra and Timothy Chan

Published September 13, 2026

Descamps supplies a core categorical-approach rule used in immigration consequence analysis.

California burglary lacked a generic element

The state statute did not require unlawful entry, making it broader than generic burglary.

Elements control the comparison

Courts compare statutory elements, not the defendant’s actual conduct, unless a divisible statute lists alternative elements.

The modified approach is only a tool for divisibility

Charging papers and plea materials cannot add an element that the indivisible statute does not contain.

The sentence enhancement was reversed

Because the statute was indivisible and overbroad, the prior conviction could not qualify through record inspection.

Key takeaways

• Obtain the statute in force on the conviction date.
• Distinguish elements from factual means.
• Use conviction records only after finding divisibility.
• Apply the same disciplined analysis to immigration classifications.