The documents that make up the record of conviction for determining the nature of the offense of conviction (i.e., elements to which a noncitizen entered a plea of guilty) are not the same as the documents that may be considered by the immigration authorities in establishing the mere existence of a conviction.[170]  While cases have determined which documents make up the “record of conviction,”[171] the documents that may be presented to prove the fact of conviction are listed under the Immigration and Nationality Act and regulations.[172]  The two lists are not the same.  The documents required to demonstrate the fact of conviction, for example, do not explicitly include charging documents.  A presentence report may be examined to determine the fact of conviction, but not the nature of the conviction.[173]  The regulations also have a catch-all provision that does not apply to the “record of conviction” for divisible statute analysis.[174]  Generally, the courts will accept a broader range of evidence to establish the existence of a conviction, including admissions made by the noncitizen in immigration court,[175] than they are allowed to consult to determine the elements of the conviction to determine whether it triggers a ground of removal.

[170] See Matter of Teixiera, 21 I. & N. Dec. 316, 319 (holding that a police report does not belong on either list: “The only document introduced into evidence that we consider to be part of the respondent’s “record of conviction,” or that fits any of the regulatory descriptions found at 8 C.F.R. § 1003.41 for documents that are admissible as evidence in any proceeding before an Immigration Judge in proving a criminal conviction, is the record of plea, verdict, and sentence. See 8 C.F.R. § § 1003.41(a)(2), (5), (6). The police report is not part of a “record of conviction,” nor does it fit any of the regulatory descriptions. Cf. 8 C.F.R. § 1003.41.”).

[171] See § § 4.21-4.32, infra.

[172] INA § 240(c)(3)(B), 8 U.S.C. § 1129a(c)(3)(B); 8 C.F.R. § 1003.41.

[173] Compare United States v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. June 9, 2003) (government’s burden of proving existence of aggravated felony to enhance illegal re-entry sentence by clear and convincing evidence was satisfied by presentence report listing crime of conviction plus noncitizen’s admission in application for benefits filed with the INS to having committed voluntary manslaughter), with Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (statement concerning underlying facts of offense recounted in the PSR does not determine that these facts are those to which the defendant pleaded guilty; it is not what the person did but the crime of conviction that is decisive for immigration purposes).  See also United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003) (presentence report that failed to identify the exact statute of conviction is legally insufficient to establish that a state conviction fell within the crime of violence definition of U.S.S.G. § 2L1.2 (2001) for purposes of sustaining a 16-level sentence enhancement for illegal re-entry).

[174] 8 C.F.R. § 1003.41(d).

[175] Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. Sept. 28, 2004) (en banc), cert. denied, 125 S.Ct. 2245 (2005) (ambiguous court record held sufficient to establish that respondent had been convicted of a firearms offense, and was thus not eligible for a waiver of deportability under INA § 212(c), 8 U.S.C. § 1182(c)); Fequiere v INS, 279 F.3d 1325 (11th Cir. Jan. 25, 2002) (the forms of evidence listed in INA § 240, 8 U.S.C. § 1229a are not exclusive, and respondent’s admission under oath of conviction constituted clear and convincing evidence in removal hearing, when the government submitted no documentary evidence such as a conviction record from the sentencing court). 

First Circuit

NATURE OF CONVICTION - ELEMENTS VS. FACTS
Lopes v. Keisler, 505 F.3d 58 (1st Cir. Oct. 26, 2007) ("[T]his court will consider whether the crime the petitioner actually committed -- as demonstrated by the record of conviction -- constitutes a crime of violence, rather than hypothesize whether every conceivable conviction under a broad statute would constitute a crime of violence."), following Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006).

RECORD OF CONVICTION - NATURE VS. PROOF OF CONVICTION
Conteh v. Gonzales, __ F.3d __ (1st Cir. Aug. 22, 2006) (documents listed at 8 C.F.R. 1003.41 are used to determine existence of conviction, not to determine under categorical analysis whether conviction triggers ground of removal; pre-sentence investigation is not part of the record of conviction for purposes of determining nature of conviction, only existence).

Second Circuit

CONVICTION - PROOF OF EXISTENCE OF CONVICTION - GOVERNMENT MAY PROVE EXISTENCE OF CONVICTION BY ADDITIONAL DOCUMENTS NOT ON STATUTORY LIST
Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb. 29, 2008) ("In addition, we have held that the list of documents enumerated in 1229a(c)(3)(B) is non-exhaustive and thus does not prohibit the admission of other types of documents if they are sufficiently "probative" of the kind of conviction at issue."), citing Dulal-Whiteway v. U.S. Dep't of Homeland Sec., 501 F .3d 116, 132 (2d Cir. 2007) (holding that while a restitution order may "offer proof that a conviction exists," an IJ may not rely on it "to establish that the underlying facts of that conviction constitute a removable offense"); Francis v. Gonzales, 442 F.3d 131, 142-43 (2d Cir. March 27, 2006) (holding that while applicable regulations allow an IJ to consider a police "rap sheet" referring to a specific conviction, an IJ may not deem such a report conclusive proof of conviction of a removable offense as rap sheets "lack the necessary information to describe the full record of conviction and do not necessarily emanate from a neutral, reliable source"); see also Dickson v. Ashcroft, 346 F.3d 44, 53-55 (2d Cir. September 09, 2003) (holding that an IJ may not rely upon the "narrative statements of facts" section of an alien's pre-sentence report to determine whether the alien had been convicted of a removable offense).

CONVICTION - PROOF - NATIONAL CRIME INFORMATION CENTER DATABASE
Doe v. ICE, __ F.Supp.2d __, 2006 WL 1294440 (S.D.N.Y. May 10, 2006) ("Information relating to persons subject to a civil order of deportation does not automatically qualify as a crime record. The Government must show that the person "willfully" violated the statute to warrant entry as part of a criminal record. See, e.g., 8 U.S.C. 1253(a)(1) (criminal penalties for "willful" failure to depart after entry of a removal order); 8 U.S.C. 1306 (criminal penalties for "willful" failure to comply with registration requirements). . . . The logical extension of the Governments interpretation of the "other records" provision would give them unlimited power to create, what at least appears to be, a criminal record based on a broad range of civil administrative information. Worse yet, as seen in this case, it may very well be used to deny employment and other opportunities. Many statutes combine criminal and civil penalties, bringing them within the ambit of the NCIC. See, e.g., 26 U.S.C. 7203 (criminal penalties for the willful failure to file tax return and/or pay tax); 33 U.S.C. 1319(c) (criminal penalties for negligent and knowing violations of the Clean Water Act). Non-citizens, as well as citizens, could be subjected to a host of penalties as a result of criminal records generated from civil information. It is hard to believe that this was the desired result of the NCIC statute.").

CONVICTION - PROOF OF EXISTENCE OF CONVICTION - RAP SHEET ALONE INSUFFICIENT
Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (Jamaican rap sheet contained in police report was, by itself, insufficient to demonstrate the existence of a "conviction" for immigration purposes, since the document by itself did not show adjudication of guilt; commentary to 8 C.F.R. 1003.41(d) suggests rap sheets admissible but not conclusive).

Fifth Circuit

NATURE OF CONVICTION - EXISTENCE V. NATURE
United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. Oct. 12, 2007) (Taylor and Shepard analysis limiting record of conviction does not apply to the issue of proving the existence of the conviction, only the nature of the conviction; where the existence of a categorical crime of violence may be shown, there is no need to apply Taylor and Shepard or look further to the record of conviction to determine whether the offense is a crime of violence).

RECORD OF CONVICTION - NATURE OF OFFENSE - SENTENCING CANNOT DETERMINE NATURE OF OFFENSE
Sentencing is a post-guilt-or-innocence procedure, and particularly where a guilty plea is involved, cannot be used to determine the nature of the offense of which the person was convicted. See Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006). See also Apprendi v. New Jersey, 530 U.S. 466 (2000). Thanks to Lisa Brodyaga.

RECORD OF CONVICTION - ABSTRACT OF JUDGMENT NOT CONCLUSIVE ON NATURE OF OFFENSE OF CONVICTION FOR IMMIGRATION PURPOSES
United States v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005) (California conviction of sale or transportation under Penal Code 11352(a) did not qualify as a drug trafficking conviction for purposes of enhancing a sentence for illegal reentry, where the sole basis for determining whether the conviction fell under the drug trafficking portion of this divisible statute was the abstract of judgment, which is not a source upon which the court can "rely to conclude that this short phrase manifests a 'conscious judicial narrowing of the charging document' rather than a shorthand abbreviation of the statute of conviction. We therefore agree with the Ninth Circuit that courts cannot exclusively rely on such shorthand descriptions to justify sentence enhancements under the Guidelines."), following United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).

Seventh Circuit

CONVICTION - PROOF OF CONVICTION - RAP SHEET PROPERLY ACCEPTED AS PROOF OF EXISTENCE OF CONVICTION
Rosales-Pineda v. Gonzales, ___ F.3d ___, 2006 WL 1667695 (7th Cir. Jun. 19, 2006) (FBI rap sheet indicating conviction of a controlled substances offense, in conjunction with corroborating evidence, "reasonably indicated the existence of a criminal conviction," and was therefore sufficient to establish that noncitizen was ineligible for relief under INA 212(h)). See 8 C.F.R. 1003.41(d). http://caselaw.lp.findlaw.com/data2/circs/7th/053188p.pdf NOTE: The court noted the distinction between establishing the existence of a conviction and establishing that the nature of the conviction renders a noncitizen deportable. However, the court here apparently assumed that the mere existence of an unspecified controlled substances offense would be sufficient to disqualify the noncitizen from 212(h) relief, without addressing the exception allowing INA 212(h) relief for someone inadmissible based upon first time simple possession of under 30 grams of marijuana.

Ninth Circuit

CONVICTION - NATURE V. EXISTENCE - MINUTE ORDER SUFFICIENT TO PROVE EXISTENCE OF CONVICTION
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (California conviction of possession of methamphetamines, under Health & Safety Code 11377(a), did not constitute a controlled substances conviction, within the meaning of INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), rejecting the argument that the minute order used to prove the conviction for possession of a controlled substance was insufficient to prove the fact of the conviction by the required clear, unequivocal, and convincing evidence standard because it contained several unexplained acronyms); following INA 240(c)(3)(B)(iv), 8 U.S.C. 1229a(c)(3)(B)(iv) ("[o]fficial minutes of a court proceeding" are sufficient "proof of a criminal conviction."); United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008) (en banc) (California state court minute order described the conviction with sufficient reliability that it could be used to establish the nature of a conviction for categorical analysis sentencing purposes).

RECORD OF CONVICTION - EXISTENCE VS. NATURE
United States v. Snellenberger, 493 F.3d 1015, ___n.5, (9th Cir. Jul. 10, 2007) (while an abstract of judgment or minute order cannot be used to establish the nature of a conviction, those documents can be used to establish the existence of a conviction; court distinguished between evidentiary law treating abstract of judgment and minute orders as accurate in the absence of contrary evidence and the question of meeting government's burden in demonstrating nature of conviction), amending 480 F.3d 1187 (9th Cir. 2007).

CONVICTION - EVIDENCE - NCIC REPORT SUFFICIENTLY RELIABLE TO ESTABLISH EXISTENCE OF CONVICTION BY A PREPONDERANCE FOR CRIMINAL SENTENCE PURPOSES, AT LEAST ABSENT SPECIFIC CHALLENGE
United States. v. Martinez-Jimenez, ___ F.3d ___, 2006 WL 2789865 (9th Cir. Sept. 29, 2006) (NCIC report is sufficiently reliable to be used to establish existence of criminal conviction, for purposes of increasing criminal history category for criminal sentence, at least where no evidence of inaccuracy of such reports has been presented); accord, United States v. Urbina-Mejia, 450 F.3d 838 (8th Cir. 2006); cf. United States v. McDonald, 606 F.2d 552, 553-54 (5th Cir. 1979) (stating in the context of probable cause to arrest that "the cases uniformly recognize that NCIC printouts are reliable enough to form the basis for the reasonable belief which is needed to establish probable cause").