The courts can look to the documents that make up the “record of conviction” only after the statute of conviction has been found by the court to be divisible.[165]         

 

            Two United States Supreme Court cases describe generally the documents that make up the record of conviction.  In United States v. Taylor, the court considered the record of conviction, in the context of a jury trial, as including the “indictment or information and jury instructions.”[166]   In United States v. Shepard, the court described the record created through a guilty plea as “the charging document, the terms of a [written] plea agreement or transcript of colloquy between the judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”[167]  The court described these documents as those that would allow a later court to tell whether the conviction “necessarily” rested on a fact that must be proven (i.e., an element) to trigger the sentence enhancement or ground of removal.[168]

 

A number of cases have more specifically described what documents are, and are not, included in the record of conviction.  See § § 4.21-4.32, infra.  The courts cannot look beyond the record of conviction.  See § 4.16, infra.  Even where the courts are allowed to look to the record of conviction, they are still required to apply a categorical analysis,[169] and cannot look to underlying facts not necessary to convict.  See § 4.17, infra.

 

[165] Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989) (“Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted.”).  See § § 4.8-4.13, supra.

[166] United States v. Taylor, 495 U.S. 575, 602 (1990).

[167] United States v. Shepard, 544 U.S. 13, 125 S.Ct. 1254, 1262 (Mar. 7, 2005).  Prior to this case, it was well accepted that the Taylor analysis applied equally to guilty pleas.  United States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir. Aug. 12, 2001); United States v. Bonat, 106 F.3d 1472, 1476 (9th Cir. 1997).

[168] Id. at 1260.

[169] See § § 4.2-4.6, supra.

STATUTORY INTERPRETATION - RULE OF LENITY - LIMITATION TO AMBIGUOUS STATUTES
Burgess v. United States, ___ U.S. ___, ___ (Apr. 16, 2008) ("Burgess urges us to apply the rule of lenity in determining whether the term "felony drug offense" incorporates [21 U.S.C.] 802(13)'s definition of "felony." "[T]he touchstone of the rule of lenity is statutory ambiguity." Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) (internal quotation marks omitted). "The rule comes into operation at the end of the process of construing what Congress has expressed," Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961), and "applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute," United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). Here, Congress expressly defined the term "felony drug offense." The definition is coherent, complete, and by all signs exclusive. Accordingly, there is no ambiguity for the rule of lenity to resolve.").

Other

NATURE OF THE CONVICTION - RECORD OF CONVICTION
The language of INA 240(c)(3)(B), 8 U.S.C. 1229a(c)(3)(B), largely tracks that of a pre-existing regulation, 8 C.F.R. 1003.41, containing a list of document acceptable to be used as part of the record of conviction in determining the nature of a conviction for immigration purposes, except that Congress refused to codify subsection (d) of the regulation, a catch-all provision which had allowed for the admission of "[a]ny other evidence that reasonably indicates the existence of a criminal conviction." Because "it is generally presumed that Congress acts intentionally and purposefully" when it includes and omits "particular language," INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987); see also, Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001)(en banc); Matter of Gomez-Giraldo, 20 I & N Dec. 957, 964 n3 (BIA 1995)(Congress is "presumed to be cognizant of existing law pertinent to the legislation it enacts."), the Court should conclude that Congress intended to limit the "documents or records" which "shall constitute proof of a criminal conviction" to those set forth in INA 240(c)(3)(B), 8 U.S.C. 1229a(c)(3)(B). Thus, unless an alien admits to a conviction and thereby dispenses of the need for evidence, see, Fequierre v. Ashcroft, 279 F.3d 1325, 1327 (11th Cir. 2002) (the "aliens admission of the conviction under oath" is sufficient to establish removability), the DHS must present at least some documentary evidence from the court of conviction or the "penal institution" where the alien served his sentence.

The comments to the regulation itself made clear that rule was intended only to set forth the "types of records that are admissible" and was not intended to relax the governments burden of proof:

The standards for establishing deportability have not been relaxed, nor has the burden of proof shifted from the government to the alien. While the rule sets forth the types of records that are admissible to prove a criminal conviction, and expands the types of documents which have traditionally been submitted to establish a criminal conviction, the burden remains with the Service to prove the underlying issue of deportability by "clear, convincing, and unequivocal" evidence. To meet this burden of proof, it may be necessary for the Service to introduce evidence beyond the initial documents presented.

58 FR 38952 (July 21, 1993).

Moreover, although the catch-all provision of 8 C.F.R. 1003.41 might have allowed the government to present a "rap sheet," the comments to that regulation make clear that such a document would ordinarily be insufficient to constitute clear, unequivocal, and convincing evidence of a conviction:

One commenter suggested that the rule be expanded to include admission of official criminal history records, or "rap sheets." While a "rap sheet" may contain some evidence of a criminal conviction, it might not include the essential aspects of a record of conviction. Therefore, while an official criminal history record, or "rap sheet," may be admissible under paragraph (d) of the rule as some evidence of a criminal conviction, it lacks the essential protections that an abstract of conviction contains. The abstract, which requires specific and detailed information of a record of a criminal conviction, is intended to provide a reliable and accurate record of conviction. The abstract of conviction will originate directly from the state or court records repositories, and will be certified by both the state official who prepares the record, and the Service official who receives the record. These protections will ensure the completeness, accuracy, and reliability of the records.

58 FR 38952 (July 21, 1993).