with whom
CALLAHAN, Circuit Judge, joins, specially concurring:I concur in the court’s opinion because it faithfully applies our precedent. I write separately because the anomalous result such precedent requires us to reach ignores the plain meaning of the statute we interpret and disregards common sense.
I
This case puts us to the familiar task of examining the list of removable offenses set forth in the Immigration and Nationality Act (“INA” or the “Act”), 8 U.S.C. § 1101, et seq., to determine whether an alien’s prior conviction fits within the scope of one such offense and, as a consequence, subjects him or her to deportation. In this case, the question presented is whether Mr. and Mrs. Kawashima, who pled guilty to having committed fraud in relation to the filing of their tax returns, have been convicted of a crime “involving] fraud or deceit in which loss to the victim or victim exceeds $10,000,” as defined by 8 U.S.C. § 1101 (a) (43) (M) (i) (“Subsection M(i)”). Our holding that the Kawashimas’ convictions do not qualify as removable offenses is compelled by two of our precedents.
First, when this court considers whether a petitioner’s prior conviction qualifies as a removable offense under the INA, we apply the two:step test designed by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), for recidivist sentencing enhancement statutes structured in the same way. See, e.g., Ye v. INS, 214 F.3d 1128, 1131-34 (9th Cir.2000). At the first step, we ask whether the petitioner’s prior conviction necessarily involves every element of the removable offense (the “generic offense”). If it does, the fact of the defendant’s conviction alone qualifies him or her as removable. Id. at 1133. If the statute under which the petitioner was convicted proscribes a broader range of conduct than the generic offense, however, we move to Taylor’s second step (which our court calls the “modified categorical approach”), and *1119examine the record of conviction to determine whether the jury in petitioner’s criminal trial “was actually required to find” or the petitioner (as defendant) necessarily admitted “ ‘all the elements of the generic crime.’”1 Li v. Ashcroft, 389 F.3d 892, 896 (9th Cir.2004) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143).
The second precedent that compels our holding is our recent en banc decision in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc), where we reformulated our modified categorical approach and held that “[w]hen the [petitioner’s] crime of conviction is missing an element of the generic crime altogether,” we can never examine the record of conviction to determine whether the former fits within the scope of the latter because the record can never reveal whether the jury was actually required to find, or the petitioner (as defendant) necessarily admitted, any element of the generic offense that is not included in the statute of conviction. Id. at 1073. Our holding, of course, was informed by the lone authority we cited for this rule — then-judge Kozinski’s concurrence in Li, 389 F.3d at 899-901. There, Chief Judge Kozinski noted that, in sentencing cases, Taylor made clear that the jury convicting a defendant of a predicate offense must be “ ‘actually required ’ ” to find him or her guilty of every element of the sentencing enhancement statute’s generic offense before the sentencing judge can increase the defendant’s sentence based on such prior crime. Id. at 899 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143 (emphasis in Li)).
Chief Judge Kozinski identified our decisions in United States v. Alvarez, 972 F.2d 1000 (9th Cir.1992) (per curiam), and United States v. Parker, 5 F.3d 1322 (9th Cir.1993), as violating this rule and argued that they should be reversed. Li, 389 F.3d at 899-900 (Kozinski, J., concurring). In Alvarez, we concluded that a defendant’s California conviction for burglary qualified as generic burglary as defined in a federal sentencing enhancement statute, even though generic burglary requires “unlawful entry,” an element the California statute lacked. 972 F.2d at 1005. We determined that such result was justified because the charging papers alleged that the defendant committed an unlawful entry even though the statute under which he was convicted was silent on the point. Id. We applied the same reasoning in Parker, although we determined that the record was insufficient. 5 F.3d at 1327. In Li, Chief Judge Kozinski argued that we ignored Taylor in both cases because “even if the jury had found that[the defendant] entered a building unlawfully, finding a fact isn’t the same as being required to find it — and Taylor calls for the latter.” Li, 389 F.3d at 900 (Kozinski, J., concurring) (internal citations omitted).
Our court adopted this reasoning in Navarro-Lopez, explicitly citing Chief Judge Kozinski’s Li concurrence, and such reasoning certainly appears consistent with Taylor’s core principles. Yet, it compels a most curious result here. In the case at hand, the Kawashimas pled guilty to violating a federal statute that prohibits fraud but does not require a particular monetary loss. Maj. Op. at 1113. Under Navarro-Lopez, we cannot consult the record of their convictions to determine whether their crimes caused a loss exceeding $10,000, as Subsection M(i) requires, because such loss is not an element of the *1120statute they pled guilty to violating. See Maj. Op. at 1117. Of course, this means that virtually no crime will subject an alien to removal under Subsection M(i) because there are almost no statutes that punish fraud and also specify that the fraud must cause a loss of $10,000 or more. See Maj. Op. at 1116-17 & n. 7 (collecting examples). And, as the court explains, Navarro-Lopez renders several of the INA’s other removability provisions completely unenforceable because no statute contains all the “elements” they require. See id. at 1116-17. I doubt seriously that Congress would have bothered to list and to define crimes in the INA that subject their perpetrators to removal if it did not believe that any criminals would actually be removed once convicted of committing them.
II
Before Navarro-Lopez, our caselaw avoided the illogical result that decision compels in this particular case. Previously, we considered whether fraud convictions qualified as removable offenses under Subsection M(i) by examining the record of conviction to determine the loss amount even where the statute of conviction lacked such an element. See Kharana v. Gonzales, 487 F.3d 1280, 1283-84 (9th Cir.2007); Li, 389 F.3d at 897; Chang v. INS, 307 F.3d 1185 (9th Cir.2002). We interpreted Subsection M(i) as having two “elements”: (1) fraud or deceit, and (2) loss to the victims in excess of $10,000. Chang, 307 F.3d at 1189. And, to remain consistent with Taylor, we insisted that the record of conviction establish that the jury “actually found” or that the petitioner necessarily pled guilty to both. Li, 389 F.3d at 896 n. 7, 897-98. In other words, we treated Subsection M(i)’s loss requirement as an “element” of the generic offense, but accepted record evidence as sufficient to establish that the petitioner was, in fact, convicted of such element. See Kharana, 487 F.3d at 1281 n. 2 (statute of conviction did not require monetary loss, but “in entering her plea, petitioner admitted to defrauding her victims of over $77,000”); Ferreira v. Ashcroft, 390 F.3d 1091, 1098-99 (9th Cir.2004) (statute of conviction required only a $1,000 loss, but restitution amount set forth in plea agreement was sufficient to establish that petitioner’s crime involved a $10,000 loss).
Navarro-Lopez rejected this approach, concluding that even our demand for such overwhelming evidence violated Taylor’s requirement that the crime of conviction contain every element of the generic offense. See 503 F.3d at 1073. This may very well be the best reading of Taylor, but if so, it is curious that none of our sister circuits agree with the rule Navarro-Lopez requires us to apply here.2 Thus, in my view, the flaw in Navarro-Lopez lies not in its interpretation of Taylor, but in its unbending application of that test, designed for criminal sentencing enhancement statutes, in the distinct setting of civil removal.
*1121III
A
Our precedents applying the modified categorical approach in immigration cases make two assumptions that I suggest are untenable. The first assumption is that any and all language Congress uses to define a particular generic offense in the INA must be parsed into “elements,” each of which the petitioner must, in fact, have been convicted. Four of our sister circuits reject such extreme literalism, and with good reason. The most common generic offenses found in the INA and in recidivist sentencing enhancement statutes are “relatively unitary categorical concepts — like ‘forgery’ ... ‘burglary’ ... or ‘crime of violence.’ ” Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir.2004) (emphasis added). It makes sense to insist that a defendant was actually convicted of a burglary or forgery or committing violence before a subsequent tribunal enhances his sentence upon a future conviction or classifies him as a removable alien on the basis of this prior offense. Yet as the Third and Fifth Circuits explain, “a departure from the formal categorical approach seems warranted” in cases where the generic offense “invite[s] inquiry into the facts underlying the conviction at issue.” Id.; see Arguelles-Olivares v. Mukasey, 526 F.3d 171, 176-77 (5th Cir.2008) (same). Indeed, “[t]he qualifier ‘in which the loss to the victim or victims exceeds $10,000’ in [Subsection M(i) ] is the prototypical example— it expresses such a specificity of fact that it almost begs an adjudicator to examine the facts at issue.” Singh, 383 F.3d at 161. Simply stated, Subsection M(i) classifies an alien as removable if he or she is convicted of a fraud-related offense “in which the loss to the victim or victims exceeds $10,000,” it does not require conviction of “a $10,000 fraud.” See Nijhawan v. Attorney Gen., 523 F.3d 387, 393 (3d Cir.2008) (emphasis added). As the Third Circuit illustrates, just as we would not interpret a generic offense that subjects an alien to removal if he or she is convicted “within the last two years” to require such durational language to be included in the statute of conviction itself, it is unreasonable to read Subsection M(i) as requiring the statute of conviction expressly to provide for a $10,000 loss. See Singh, 383 F.3d at 161; see also Arguelles-Olivares, 526 F.3d at 177-78 (“The amount of loss is relevant in a criminal prosecution primarily, if not exclusively, to sentencing. When a tribunal subsequently examines, for collateral purposes like those here, the amount of loss resulting from an offense, the reason for applying the modified categorical approach does not fully obtain.”).
Accordingly, I believe it is unreasonable to interpret Subsection M(i) to require a “loss to the victim” element in the alien’s statute of conviction. Rather, the most natural reading of Subsection M(i)’s $10,000 loss requirement is as a qualifying provision that limits the number of predicate convictions that would otherwise subject an alien to removal. In other words, the statute provides that any alien who commits an offense “involving] fraud or deceit” is removable if such offense is one “in which” the loss to the victim exceeded $10,000. 8 U.S.C. § 1101 (a)(43)(M)(i). As the Third and Fifth Circuits suggest, the text of this statute plainly directs the agency (and our court upon a petition for review) to examine the circumstances surrounding the alien’s conviction; it does not demand that the statute of conviction specify the amount of monetary loss itself.
B
More importantly, acknowledging the linguistic distinction between provisions such as Subsection M(i) and the remainder of the removable offenses enumerated in the INA should not obscure the greater *1122mischief Navarro-Lopez creates. As noted in the court’s opinion, the courts of appeals have uniformly begun with Taylor's categorical approach when comparing predicate crimes to generic offenses in the INA. Maj. Op. at 1113-14 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 818, 166 L.Ed.2d 683 (2007)). Yet to accept that Taylor informs such task is not to suggest that Taylor controls it. In Navarro-Lopez, we continued to assume, as we always have, that the test the Supreme Court designed in Taylor for the purpose of categorizing prior convictions under recidivist sentencing enhancement statutes must apply, root-and-branch, to the task of categorizing prior convictions under the INA. Our colleagues on the First and Seventh Circuits, however, have recognized that although the legal question is similar, two critical distinctions between sentencing and removal make it imperative to adapt Taylor to fit the confines of this separate arena. See Ali v. Mukasey, 521 F.3d 737 (7th Cir.2008); Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006).
First, the Supreme Court’s decision in Taylor was informed by constitutional concerns that are entirely absent from the immigration context. When a sentencing judge increases a defendant’s sentence based on his or her prior convictions, the defendant’s Sixth Amendment rights are impacted directly. Yet when an immigration judge cites an alien’s prior conviction as the basis for removal, there is no constitutional right in play. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (explaining that “various protections that apply in the context of a criminal trial do not apply in a deportation proceeding”); Conteh, 461 F.3d at 55. As the Seventh Circuit explains, Taylor was designed to “prevent[ ] the sentencing judge in the new case from assuming a role that the Constitution assigns to the jurors in the first case.” Ali, 521 F.3d at 741. This design served two purposes: saving the sentencing court the burden of a retrial, see Taylor, 495 U.S. at 601-02, 110 S.Ct. 2143, and preserving the Sixth Amendment’s allocation of responsibilities between the judge and jury, see id.; Shepard, 544 U.S. at 24-26, 125 S.Ct. 1254. The latter concern has no place in an immigration case because it is not a criminal proceeding and, as such, “the [Sjixth [A]mendment and the doctrine of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), do not come into play.” Ali, 521 F.3d at 741. And the former goal, saving the agency the burden of a retrial, is a question within the agency’s discretion rather than our own. Id.; see also Conteh, 461 F.3d at 45; Nijhawan, 523 F.3d at 399 (“[W]e should not raise an aspect of an immigration statute to the level of an element of a criminal offense ... merely because requiring that it be a part of the conviction eases a court’s decision-making process.”)
Second, the INA specifies that, in removal proceedings, the government “has the burden of establishing by clear and convincing evidence” that the alien is removable. 8 U.S.C. § 1229a(c)(3)(A).3 Navarro-Lopez, and indeed even our preNavarro-Lopez cases, require far more. Before Navarro-Lopez, we demanded that the record of conviction prove that the jury actually found or that the alien necessarily admitted to every so-called “element” of the generic offense listed in the INA. But *1123in so doing, we raised the burden of proof in removal proceedings beyond the INA’s “clear and convincing” standard to the burden Taylor imposes in sentencing cases, which is materially indistinguishable from proof beyond a reasonable doubt. Nijhawan, 523 F.3d at 398; Conteh, 461 F.3d at 56. In Navarro-Lopez, our refusal even to examine the record of conviction for such evidence in cases where the statute of conviction is missing any language from the INA’s definition of the generic offense is stricter still. The Act provides unequivocal instructions to the contrary. In the absence of any constitutional reason to require otherwise, I believe our disregard for those instructions obstructs Congress’s intent and exceeds our judicial role.
As the Seventh Circuit has explained, after the fact of petitioner’s prior conviction has been established, “the appropriate classification of that conviction — whether it was a crime ‘involving moral turpitude’ or one ‘in which loss ... exceeds $10,000’— may require additional information.” Ali, 521 F.3d at 741. That is to say, the need to decide whether a crime is one of “moral turpitude” or one in which the loss to the victim exceeds a particular amount “does not have a parallel in criminal cases.” Id. at 741-42. After all, a term such as “ ‘moral turpitude’ just isn’t relevant to the criminal prosecution; it is not as if ‘turpitude’ were an element of an offense.” Id.; see also Navarro-Lopez, 503 F.3d at 1085 (Bea, J., dissenting) (“There is no generic federal crime of moral turpitude.... One has to have a crime, such as burglary, to use the Taylor categorical analysis.”).
It is true that the INA requires an alien to be “convicted” of the generic offenses before he or she may be considered removable on that basis. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”); Id. § 1227(a)(2)(A)© (requiring the same for aliens “convicted” of crimes involving moral turpitude). But applying the INA’s evidentiary burden as it is written is not inconsistent with this requirement. The INA does not require that the jury in petitioner’s case was actually required to find him or her guilty of every word or phrase it uses to describe a generic offense. See Conteh, 461 F.3d at 56. Instead, the Act requires clear and convincing evidence (1) that the petitioner was, in fact, convicted, and (2) that the conviction fits the appropriate classification — a crime “involving moral turpitude” or one “in which” the loss exceeds a particular amount, for example. This is a heavy burden and will not easily be met in cases such as this one, where the text of the statute of conviction and the generic offense are not a categorical match. But, there may be clear and convincing evidence that a petitioner’s conviction fits within the scope of the relevant generic offense even where the formal elements of the statute of conviction are missing language from the generic offense. Criminal statutes simply do not contain as “elements” all the language used in the INA to describe removable offenses. Congress understood this when it enacted the INA and did not require that a petitioner literally be convicted of as much for his or her conviction to trigger removal.
If one accepts that Taylor1 s constitutional concerns do not migrate to the removal context, and if one further accepts that the burden of proof set forth in the INA differs from Taylor1 s, there is no reason to ignore the record of conviction when determining whether an alien’s conviction qualifies as a removable offense. It should make no difference if the question is whether the predicate conviction was one “involving moral turpitude,” as it was in Navarro-Lopez, or if the question is whether such conviction is one “in which *1124loss ... exceeds $10,000,” as it is here.4 In my view, Navarro-Lopez’s refusal to examine the record of conviction in either setting whenever the statute of conviction is missing these so-called “elements” is simply unsupportable.
Navarro-Lopez may have accurately interpreted Taylor, but it did so at the expense of fairly applying the INA. By importing Taylor’s criminal sentencing test, root-and-branch, to the arena of civil removal in which we find ourselves here, I believe Navarro-Lopez improperly rewrites the INA’s plain instructions and stands as a roadblock needlessly frustrating Congress’s intent.
rv
Our reformulation of the modified categorical approach in Navarro-Lopez stands alone, without support from any other courts of appeals to have considered this question. Moreover, our treatment of this issue was, at best, cursory — two paragraphs and a footnote — and, in my view, entirely insufficient to address a question of such great magnitude. Our decision never addressed the dissenting views of our sister circuits, or even acknowledged the precedents it overturned. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001) (Kozinski, J.) (“[W]e would consider it bad form to ignore contrary authority by failing even to acknowledge its existence .... So long as the [rejected] earlier authority is acknowledged and considered, courts are deemed to have complied with their common law responsibilities.”).
In light of such swift treatment of an important and frequently recurring question, and especially in light of the growing weight of authority that rejects our conclusion, I believe it is fair to ask whether the modified categorical analysis we adopted as law of this circuit in Navarro-Lopez reasonably interprets the INA. I believe it does not, and I write separately in the hope that an en banc court with the power to address the anomalies that Navarro-Lopez compels will ask the same question very soon.
. In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court held that Taylor applies in equal force when determining whether a defendant’s prior conviction qualifies as a generic offense that subjects him or her to a sentencing enhancement regardless of whether the conviction arose from a jury verdict or a guilty plea. Id. at 20-21, 125 S.Ct. 1254.
. The Second Circuit toyed with adopting the rule we did in Navarro-Lopez, but ultimately presumed, without deciding, that our pre-Aavarro-Lopez approach controls. Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 127, 131 (2d Cir.2007). The Eleventh Circuit also appears to take the route we chose before Navarro-Lopez. See Obasohan v. U.S. Att’y Gen., 479 F.3d 785, 789 (11th Cir.2007); see also Graham v. Mukasey, 519 F.3d 546, 550-51 (6th Cir.2008) (not endorsing a particular approach but examining the record of conviction to determine that a petitioner’s prior conviction qualified as an aggravated felony under Subsection M(i) even though the statute of conviction did not require a $10,000 loss). But, as further explained below, the First, Third, Fifth, and Seventh Circuits have not only rejected our Navarro-Lopez approach but further conclude that even our pre-Navarro-Lopez cases frustrate the plain meaning of the INA.
. The statute goes on to provide that "No decision of deportability shall be valid unless it is based on reasonable, substantial, and probative evidence.” 8 U.S.C. § 1229a(c)(3)(A). The Act also lists the sources of evidence which may be consulted to establish proof of a conviction. Id. § 1229a(c)(3)(B). Those sources are substantially similar to those described as within the bounds of the inquiry in Taylor and Shepard.
. If one accepts such proposition, a separate question arises as to what sources a court may consider in determining whether clear and convincing evidence that a predicate offense fits within the relevant generic offense in the INA. The First Circuit limits its inquiry to the materials listed in 8 U.S.C. § 1229a(c)(3)(B), which are essentially the same as those described in Taylor and Shepard. See Conteh, 461 F.3d at 55. The Seventh Circuit, on the other hand, interprets the INA to limit the inquiry to the materials listed in § 1229a(c)(3)(B) only for purposes of ascertaining the fact of petitioner's conviction. For the question of whether the conviction fits the appropriate classification (e.g., the amount of the victim’s loss, or whether the crime is one of moral turpitude), "additional evidence may be taken by the immigration judge when necessary,” Ali, 521 F.3d at 742 (citing In re Babaisakov, 24 I. & N. Dec. 306 (2007)), even "evidence beyond the charging papers and judgment of conviction,” id. at 743.