The court cannot, under any circumstances, look beyond the record of conviction to determine whether a conviction triggers removal as an aggravated felony offense, or otherwise falls within a conviction-based ground of removal.[176] “In deportation proceedings the immigration judge cannot go behind the judicial record to determine the guilt or innocence of an alien.  See Matter of Khalik, 17 I & N Dec. 518 (BIA 1980); Matter of McNaughton, 16 I & N Dec. 569 (BIA 1978); Matter of Fortis, 14 I & N Dec. 576 (BIA 1974).”[177]  Judge Learned Hand described this principle:

 

Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed.  When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. Conversely, when it does, no evidence is competent that he was in fact blameless.[178] 

 

This rule applies against the immigrant as well as the government.[179]  “We note that in the context of crimes involving moral turpitude, the Government has long opposed looking outside the record of conviction to resolve questions of deportability.  See, e.g., Tillinghast v. Edwards, 31 F.2d 81, 82-84 (1st Cir. 1929); see also Castle v. INS, 541 F.2d 1064, 1066 n.5 (4th Cir. 1976).”[180]

 

It has been long acknowledged by this Court and every other circuit that has addressed the issue that crimes of theft, however they may be technically translated into domestic penal provisions, are presumed to involve moral turpitude.  Brett v. INS, 386 F.2d 439 (2d Cir. 1967), cert. denied, 392 U.S. 935, 88 S.Ct. 2304, 20 L.Ed.2d 1394 (1968); Soetarto v. INS, 516 F.2d 778 (7th Cir. 1975); Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962).  Of course, it hardly takes a flight of imagination to conceive of circumstances in which acts technically constituting this type of offense could be viewed as entirely free of such a stigma. However, an alien convicted of theft cannot demonstrate such mitigation by relitigating the merits of the case before the INS or reviewing courts.[181]

 

Therefore, testimony of the noncitizen in immigration court cannot be used either to prove, or disprove, whether a conviction triggers removal.[182]  In Flores v. Ashcroft,[183] the Seventh Circuit held that the BIA was not entitled to look beyond the elements of the state battery offense of conviction to consider the actual conduct or underlying facts in order to assess whether Flores’ crime was an aggravated felony “crime of violence” under 18 U.S.C. § 16, for purposes of triggering deportation as a conviction of a crime of “domestic violence.”[184]  The court did not hold that it was proper in reaching this determination to go beyond the elements to the facts in considering whether the victim was a protected person within the meaning of the domestic violence ground of deportation.  The court simply held that the elements of the offense of conviction were insufficiently violent to fall within the definition of “crime of violence” for this purpose, and granted the petition for review since the respondent was not deportable under this ground.  In dictum, Flores did state that the noncitizen’s admission, at his removal hearing, that the assault victim was his wife, would be sufficient to establish that the offense took place against a person protected by the domestic violence ground of deportation, but its dictum shows flawed reasoning because it cited Sutherland v. Reno,[185] in support of this proposition, even though Sutherland did not hold any such thing.  See § 4.6(A), supra.

 

            The testimony of other witnesses presented during immigration proceedings likewise is not part of the record of the conviction in criminal court.[186] The Ninth Circuit has also held that statements by the defendant, made in the course of prosecution for illegal re-entry, regarding the facts underlying a prior conviction cannot be used when applying the divisible statute analysis.[187]

[176] Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. July 11, 2005) (“Documents and testimony that would require us to make factual determinations that were not necessarily made in the prior criminal proceeding lie outside the scope of our inquiry under the modified categorical approach.”); Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir. 2004) (“While ‘it is proper [for the Board] to look to probative evidence outside the record of conviction in inquiring as to the circumstances surrounding the commission of [a] crime in order to determine whether a favorable exercise of discretion is warranted,’ ‘the Immigration Judge and this Board may not go beyond the record of conviction to determine the guilt or innocence of the alien.’), citing Matter of Mendez-Moralez, 21 I. & N. Dec. 296, 303 n.1 (BIA 1996) (emphasis added); Rassano v. INS, 377 F.2d 971 (7th Cir. 1966); United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939); United States ex rel. Mylius v. Uhl, 210 F. 860, 862-63 (2d Cir. 1914); Zgodda v. Holland, 184 F.Supp. 847 (E.D.Pa. 1960) (the court was not free to go behind noncitizen’s convictions of simple larceny and consider circumstances in which offenses were committed, nor could the court consider the fact that convictions had been expunged from records of the noncitizen’s native country, but was required to determine the moral quality of the act upon the basis of the convictions themselves, and where noncitizen conceded that she had been convicted of simple larceny, that was a crime involving moral turpitude); Vidal y Planas v. Landon, 104 F.Supp. 384, 389 (S.D.Cal. 1952); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534, 536 (E.D.Pa. 1947); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974).

[177] Matter of Danesh, 19 I. & N. Dec. 669 (BIA 1988).  See also United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939); United States ex rel. Mylius v. Uhl, 210 F. 860, 862-63 (2d Cir. 1914); Zgodda v. Holland, 184 F.Supp. 847 (E.D.Pa. 1960) (the court was not free to go behind noncitizen’s convictions of simple larceny and consider circumstances in which offenses were committed, nor could the court consider the fact that convictions had been expunged from records of the noncitizen’s native country, but was required to determine the moral quality of the act upon the basis of the convictions themselves, and where noncitizen conceded that she had been convicted of simple larceny, that was a crime involving moral turpitude); Vidal y Planas v. Landon, 104 F.Supp. 384, 389 (S.D.Cal. 1952); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534, 536 (E.D.Pa. 1947); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974).  But see Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) (dictum).  See § 4.6, supra.

[178] United States ex rel. Robinson v. Day, 51 F.2d 1022, 1022-23 (2d Cir. 1931) (citations omitted).

[179] If this rule is to be breached, however, it would arguably violate due process to allow it to be breached only in favor of the government. E.g., Warden v. Hayden, 387 U.S. 294 (1967).

[180] Matter of Teixeira, 21 I. & N. Dec. 316, n.1 (BIA 1996); Matter of T, 3 I. & N. Dec. 641 (BIA 1949) (where a record of conviction is introduced in the immigration proceeding, the nature of the crime is conclusively established by the record of conviction and this rule precludes inquiry outside the record of conviction as to facts favorable and unfavorable to the noncitizen).  See also Alleyne v. INS, 879 F.2d 1177, 1185 (3d Cir. 1989).

[181] Chiaramonte v. INS, 626 F.2d 1093 (2d Cir. June 23, 1980) (noncitizen found guilty by foreign tribunal of crime of moral turpitude may not attempt to demonstrate through collateral attack in United States courts that his actions were only undertaken in response to exceptional circumstances and that he is morally blameless and unless records of original proceeding, including judgment, clearly reflect such extenuating circumstances, neither the INS nor the courts may consider extrinsic evidence in determining moral culpability of the offense).  See also Matter of T, 3 I. & N. Dec. 641, 642-643 (BIA 1949) (“It is true that in some cases this rule results in the deportation of an alien who has committed a petty offense that does not necessarily indicate moral obliquity and in a finding of nondeportability in some very few cases where the offense is indicative of bad character.  ‘But such results always follow the use of fixed standards and such standards are . . . necessary for the efficient administration of the immigration laws.’”), quoting U. S. ex rel. Mylius v. Uhl, 203 Fed. 152, 154 (S. D. N. Y. 1913), aff’d, 210 Fed. 860 (2d Cir. 1913).

[182] See Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 n.4 (9th Cir. June 26, 2003) (statement by respondent’s accredited representative that respondent had been convicted of a felony offense has no legal effect, and is not a binding “admission” to having committed such offense; respondent’s subjective belief about the nature of his offense is irrelevant to the purely legal questions of the category of offense or the maximum penalty); Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (concession before the immigration court does not obviate the right to challenge or obtain a ruling on whether a conviction constitutes an aggravated felony when it is a pure matter of law on which the appellate court can rule); United States ex rel. Mylius v. Uhl, 210 Fed. 860 (2d Cir. 1914); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534 (E.D. Pa. 1947); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996) (firearms offense); Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974); Matter of S, 5 I. & N. Dec. 576 (BIA 1953) (respondent’s testimony in deportation proceedings does cast some light on the nature of the acts he is alleged to have committed, but the immigration court is precluded from going outside the record of conviction to consider such testimony).

[183] Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003).

[184] Ibid., citing Taylor, at 670.

[185] Sutherland v. Reno, 228 F.3d 171, 176-78 (2d Cir. 2000).

[186] Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Immigration Judge improperly  considered the testimony of the victim as to the nature of her relationship with the noncitizen in concluding that the crime of violence constituted a “crime of domestic violence” for deportation purposes).

[187] United States v. Nobriga, 408 F.3d 1178, 1182 n.4 (9th Cir. May 20, 2005) (per curiam) (“Such a post hoc admission is not pertinent to Taylor’s modified categorical approach. The statement at issue did not come in the plea colloquy for the offense of conviction, which generally is judicially noticeable under Taylor and Shepard. See, e .g., United States v. Smith, 390 F.3d 661 (9th Cir. 2004), as amended, 405 F.3d 726 (9th Cir. Apr.27, 2005). Rather, Nobriga’s statement about the former offense was made in the district court in this case. Such a statement is not judicially noticeable under Taylor and Shepard.”).

CATEGORICAL ANALYSIS - LIMIT TO RECORD OF CONVICTION
National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 982-983, 125 S.Ct. 2688 (June 27, 2005) ("A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. . . . Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. " [emphasis added]).

Congress is not presumed to overrule existing law sub silentio. The categorical analysis and divisible statute rules were in place before the recent immigration legislation was enacted. There are strong arguments that the BIA's decision in Matter of Babaisakof, 24 I. & N. Dec. 306 (BIA 2007), does not qualify as the type of subsequent administrative interpretation under the Supreme Court's test in Brand X that can abrogate the Ninth Circuit fraud decisions. See Brand X, supra, 545 U.S. at 982: "A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." In Chang v. INS, 307 F.3d 1185 (9th Cir. 2002), the Ninth Circuit's language suggests its decision was based on the "unambiguous terms" of INA 101(a)(43)(M)(i) and the statutory definition of conviction at INA 101(a)(48)(A): "To adopt the government's approach would divorce the $10,000 loss requirement from the conviction requirement, see 8 U.S.C. 1227(a)(2)(A)(iii) (providing that an alien is deportable 'who is convicted of an aggravated felony'." Chang v. INS is the type of circuit decision that the Court in Brand X said is not subject to abrogration by a later administrative interpretation. The argument may not be as strong for Matter of NAM, 24 I. & N. Dec. 336 (BIA 2007) (offense need not be an aggravated felony to be a particularly serious crime for withholding purposes), or in other circuits, but in the Ninth Circuit, because Chang was linked to statutory construction and not just the Taylor/Shepard analysis, the BIA's later interpretation cannot overrule the Ninth Circuit's decision in Chang v. INS. Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004), or the other 9th Circuit fraud cases, may offer additional support. Thanks to Dan Kesselbrenner.

BIA

RECORD OF CONVICTION EXTRA ELEMENT
Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA Sept. 28, 2007) (IJ erred in failing to examine presentence report to determine whether noncitizen had been convicted of an aggravated felony fraud offense, with a loss of $10,000 or more; the loss to the victim requirement under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), is an extra element that may be determined (1) without application of the categorical or divisible statute analysis; and (2) by looking beyond the record of conviction to any evidence admissible in removal proceedings bearing on the loss to the victim, including testimony in immigration court).

NOTE: This is an insupportable decision, building upon the BIAs analysis in Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007). It is extremely likely to be overturned or limited (if appealed), as the case arose in the Third Circuit, which, while allowing proof of a portion of a ground of deportation beyond the elements of the offense of conviction, requires that the extra element be found by examination of the record of conviction, and not beyond. See Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004); Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (cannot look to dismissed counts; limiting examination to the indictment, plea, verdict, sentence, and any explicit factual findings by the trial judge.), citing Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254 (2005). The BIA decision in fact cites the Third Circuit as already having made a holding contrary to the BIAs holding. Matter of Babaisakov, 24 I&N Dec. at 316.

Thus the BIA is blatantly ignoring the rule that the court must follow the law of the circuit in which the case arose. Matter of Anselmo, 20 I. & N. Dec. 25 (BIA 1989). While on the one hand suggesting that it is following Alaka (see, e.g., Babaisakov, n.8), the decision concludes with the following: We leave for another day any questions that may arise with respect to circuit law that may be in tension with this decision, as we ordinarily follow circuit law in cases arising within a particular circuit and the grounds for any departure would need to be developed in the context of specific cases. Matter of Babaisakov, supra, 24 I. & N. Dec. at 322 (emphasis supplied). Apparently the BIA no longer feels it needs follow the law of the circuit courts.

The only basis on which this case might not be overruled is the fact that the criminal trial judge affirmatively adopted the PSR without change, thus arguably making the PSR an explicit factual finding by the trial judge, and so any discussion of abandoning the categorical analysis or allowing examination of any admissible evidence could be read as dictum. Only the First Circuit has suggested an analysis similar to that presented in this case. See Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006).

Third Circuit

CATEGORICAL ANALYSIS - LIMIT TO RECORD OF CONVICTION
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) ("In Dulal-Whiteway, the Second Circuit noted that the words of the INA provision render deportable one who has been convicted of an aggravated felony, not one who has committed an aggravated felony. Id. at 132. We do not disagree with this and, much like the Court of Appeals for the First Circuit in Conteh, we endorse careful consideration of the record to determine whether it is sufficiently clear that the loss connected to the crime of conviction exceeded $10,000. As Judge Becker noted in Singh, The dissent posits that our opinion permits consideration of loss caused by "relevant conduct" rather than the conduct of conviction. This is not correct. By requiring that loss be tethered to the convicted conduct, we are excluding consideration of relevant conduct, as did the Court of Appeals for the Seventh Circuit in Knutsen and the Court of Appeals for the Eleventh Circuit in Obasohan. In fact, we use the word "relevant" only in discussing these courts opinions. Furthermore, there is no conduct in this case other than that underlying the conviction."

Fifth Circuit

NATURE OF CONVICTION " JUDICIAL SENTENCING FINDING THAT VICTIM WAS 16 YEARS OLD DOES NOT DETERMINE NATURE OF OFFENSE
Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) (Rodriguez's Adjudication of Guilt states that [t]he Sex Offender Registration Requirements ... do apply to the Defendant. The age of the victim at the time of the offense was 16 years of age. However, this statement does not indicate that the age of the victim was an element of the offense under which Rodriguez was convicted. Nor is this an explicit factual finding by the trial judge to which the defendant assented. [Footnote omitted.] Rodriguez did not plead guilty to the sexual assault of a child. [Footnote omitted.]); quoting Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. Aug. 24, 2006).

NATURE OF OFFENSE - CATEGORICAL ANALYSIS - LIMITATION TO RECORD OF CONVICTION
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) (court of appeals enforces record of conviction limitation, of categorical analysis, and holds it improper to go beyond record of conviction where the statute defining the offense of conviction does not contain disjunctive elements or divisible subsections creating multiple offenses: "The purpose of the categorical approach is to avoid "the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind prior convictions .... [which] would potentially require federal courts to relitigate a defendant's prior conviction in any case where the government alleged that the defendant's actual conduct fit the definition of a predicate offense."), citing Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).

NATURE OF OFFENSE - CATEGORICAL ANALYSIS - LIMITATION TO RECORD OF CONVICTION
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) (court of appeals enforces record of conviction limitation, of categorical analysis, and holds it improper to go beyond record of conviction where the statute defining the offense of conviction does not contain disjunctive elements or divisible subsections creating multiple offenses: "The purpose of the categorical approach is to avoid "the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind prior convictions .... [which] would potentially require federal courts to relitigate a defendant's prior conviction in any case where the government alleged that the defendant's actual conduct fit the definition of a predicate offense."), citing Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).

RECORD OF CONVICTION - LIMITATION TO RECORD OF CONVICTION - PRESENTENCE REPORTS
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. Apr. 22, 2008) (BIA did not abuse its discretion to consider facts in presentence report to establish loss to the victim exceeded $10,000, since reason for employing "modified categorical approach" did not fully obtain when tribunal subsequently examined, for collateral purposes, the amount of loss resulting from offense; and consideration of presentence report (PSR) in determining amount of loss was not abuse of discretion where the district court accepted the PSR into the record and the defendant did not object).

Ninth Circuit

RECORD OF CONVICTION
S-Yong v. Holder, 578 F.3d 1169 (9th Cir. Aug. 25, 2009) (IJ decision reversed where record contained no criminal documentation to show that noncitizens conviction under California Health & Safety Code 11378 involved a federally listed controlled substance).

RECORD OF CONVICTION - LIMITATION TO RECORD OF CONVICTION
Sandoval-Lua v. Gonzales, ___ F.3d ___, ___ n.7, 2007 WL 2421427 (9th Cir. Aug. 28, 2007) (implying that the court may not look beyond the record of conviction in determining whether criminal offense triggers statutory bar to relief as aggravated felony or crime of moral turpitude). See also Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006) (government could not demonstrate that second possession conviction was an aggravated felony, in order to disqualify noncitizen from relief, where record of conviction in the second case did not show that existence of prior conviction was proven to the convicting court).

RECORD OF CONVICTION - ASSUMPTIONS NOT ALLOWED
United States v. Snellenberger, 493 F.3d 1015, ___n.5, (9th Cir. Jul. 10, 2007) (even though government presented information containing count charging first-degree burglary, and the court recognized that a conviction of first degree burglary "necessarily encompasses all factual elements of burglary of a dwelling," the court still found minute order indicating a plea to "459 Penal Code (first degree)" insufficient to establish that the plea was in fact to burglary of a dwelling).

Other

NATURE OF OFFENSE - LIMITED TO RECORD OF CONVICTION
Attorney General Opinion, Opinions from Office of Legal Counsel, Vol. 31, May 17, 2007 ("A "misdemeanor crime of domestic violence" under 18 U.S.C. 922(g)(9) is limited to those offenses of which the use or attempted use of physical force or the threatened use of a deadly weapon is an element that is, a factual predicate specified by law and required to support a conviction. Where the legal definition of the crime at issue contains a disjunctive element (which requires proof of only one of multiple specified factual predicates), only one subpart of which requires the use or attempted use of physical force or the threatened use of a deadly weapon, application of the prohibition in section 922(g)(9) will turn on whether the fact finder found that the subpart meeting the "misdemeanor crime of domestic violence" definition had been proved (or whether the defendant pleaded guilty to that subpart). The answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction. Police reports cannot answer that question. The above interpretations also govern background checks by the Federal Bureau of Investigation for firearms transfers under the National Instant Background Check System, but additional materials, including police reports, may be relied upon by the NICS for certain limited purposes.")