(C)  Codefendant’s Record of Conviction.  The record of conviction of a noncitizen does not include the record of conviction of the person’s codefendant.[285]

 

[285] Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (record of conviction of respondent, who aided and abetted her husband, does not include the conviction record of the husband where her record of conviction nowhere related her crime of aiding and abetting to the specific sexual offense of which her husband was convicted, the respondent’s prior conviction for engaging in deviate sexual intercourse with a 3-year-old female was overturned on appeal, and the statute under which she was subsequently convicted specifically excluded felonies under 18 U.S.C., Chapter 109A (18 U.S.C. § § 2241-45 (Supp. IV 1986)), which concerns sexual abuse offenses).

BIA

RECORD OF CONVICTION - NO CONTACT ORDER - FAILURE TO CONSTITUTE CLEAR AND CONVINCING EVIDENCE OF NATURE OF CONVICTION WHERE NO CONTACT ORDER MAY BE BASED ON PREPONDERANCE OF THE EVIDENCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington no contact order, contained in criminal case file, identifying the victim's date of birth, did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. . . . [A]lthough a "no-contact order" must bear a relationship to an offender's convicted offense, no direct causal link need be established between such an order and the crime committed. State v. Warren, 138 P.3d 1081, 1094 (Wash. Ct. App. 2006) (citing State v. Llamas-Villa, 836 P.2d 239 (Wash. Ct. App. 1992)). Thus, a no-contact order may be issued in Washington on the basis of facts that were not necessarily admitted by the defendant or proven beyond a reasonable doubt in order to establish the defendant's guilt with respect to the underlying crime.").

RECORD OF CONVICTION - ELEMENT OF OFFENSE - SENTENCE ENHANCEMENT - SENTENCE FACTOR LAWFULLY FOUND BY A PREPONDERANCE OF THE EVIDENCE DOES NOT CONSTITUTE AN ELEMENT OF THE OFFENSE UNDER APPRENDI
The impact of Matter of Martinez-Zapata, 24 I. & N. Dec. 424 (BIA 2007), holding certain sentence enhancements to be equivalent to elements of the offense for purposes of determining the nature of the offense for immigration purposes, does not apply where a sentence enhancement has been found true by a mere preponderance of the evidence, whether it be found by a court or jury. This is because Apprendi v. New Jersey, 530 U.S. 466 (2000), on which Martinez-Zapata is based, held that a sentencing court's finding by a preponderance of the evidence of the truth of a sentence enhancement that increased maximum penalty of offense was unconstitutional in violation of the jury trial guarantee of the United States Constitution because it constituted an element of the offense under that provision.

   This offers a number of favorable arguments counsel can use to argue that a given sentence enhancement does not constitute an element of the offense for purposes of determining the nature of the offense under immigration law. The BIA itself recognized important limitations on its decision.

   Importantly, we point out that Apprendi and its progeny do not encompass all sentence enhancements; the Apprendi analysis will not result in all sentence enhancements being the equivalent of "elements" of an offense. Rather, those post-Apprendi enhancements that may still permissibly be found by a preponderance of the evidence by a sentencing judge, including those under the United States Sentencing Guidelines and many State sentencing schemes, will not be the equivalent of an "element" of an offense. See, e.g., Cunningham v. California, 127 S. Ct. 856 (2007); Blakely v. Washington, supra; Ring v. Arizona, 536 U.S. 584 (2002). It is crucial that an examination of the specific statutory sentencing scheme be conducted in order to make the determination. To equate to an element it must be shown that, under the law of the convicting jurisdiction, a sentencing factor had to be proved to a jury beyond a reasonable doubt if it was not admitted by the defendant.

Martinez-Zapata, supra, at 430. In particular, a number of limitations and arguments emerge from this decision:

   (1) Martinez-Zapata cannot retroactively convert a sentence enhancement found by a mere preponderance into an element of the offense. Many sentence enhancements imposed prior to June 26, 2000, the date on which Apprendi was decided, were imposed after a sentencing judge found the sentence enhancement true by a preponderance of the evidence. These sentence enhancements cannot constitute elements of the offense under Martinez-Zapata, because it was not in fact admitted by the defendant or found true beyond a reasonable doubt by a jury. Martinez-Zapata expressly states that its rule (like its rationale) applies only with respect to "any post-Apprendi sentencing factor that is shown to have been found in accordance with the criminal law protections of a jury trial and burden of proof afforded a defendant in relation to the elements of an offense." Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.5 (BIA 2007). "The holding in Matter of Rodriguez-Cortes also continues to apply in pre-Apprendi sentencing determinations." Matter of Martinez-Zapata, supra, at 429 (BIA 2007).

   (2) Even after Apprendi, it took some time before courts implemented that decision, so it is important to verify that the sentence enhancement in the case under consideration was in fact admitted by the defendant or found true beyond a reasonable doubt by a jury. If not, the sentence enhancement does not in fact constitute an element of the offense. Even today, because of the ongoing confusion in this area, many courts are not in fact implementing Apprendi correctly. The courts' learning process is sometimes slow.

   (3) Be alert for instances in which the sentence enhancement was found by a preponderance, rather than beyond a reasonable doubt. In jury cases, check the jury instructions relating to the sentence enhancement to verify the burden of proof was in fact beyond a reasonable doubt. The BIA has cautioned that the inquiry in these cases is very much dependent on the exact mechanics of the statutes in the jurisdiction of conviction:

However, not all facts bearing on sentencing are required to be found beyond a reasonable doubt as a result of Apprendi and Blakely. In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court made determinations under the United States Sentencing Guidelines advisory, thereby allowing such findings to continue to be made solely by Federal judges under a preponderance of the evidence standard. Further, the States have responded in various ways to Apprendi and Blakely, such that a careful understanding of specific State law is needed to determine whether a particular sentencing factor, if not admitted during the criminal proceedings, would be required to be found beyond a reasonable doubt by a jury.

Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 428-429 (BIA 2007) [footnote omitted].

   (4) Following Apprendi, Martinez-Zapata applies only to sentence enhancements that increase the maximum possible statutory penalty for the offense. Therefore, sentence enhancements are not equivalent to elements of the offense, for immigration purposes, if they do not increase the maximum statutory penalty for the conviction, but merely increase the actual sentence ordered for the conviction within a fixed statutory maximum, as is the case under the United States Sentencing Guidelines and similar state sentence frameworks.

   (5) Martinez-Zapata does not apply where a sentence enhancement does not increase the statutory maximum for the offense, but merely the statutory minimum. See Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.4 (BIA 2007) ("Compare section 481.134(c) of the Texas Health and Safety Code, which is not subject to Apprendi in accordance with Harris v. United States, 536 U.S. 545 (2002), because it merely increases the statutory minimum sentence but does not exceed the statutory maximum sentence. See Williams v. State, 127 S.W.3d 442, 445 (Tex. App. 2004) (finding that section 481.134(c) does not create a separate offense because its only effect is to raise the penalty when an enumerated offense is committed in a designated place); see also Uribe v. State, 573 S.W.2d 819 (Tex. Crim. App. 1978).").

   (6) The federal constitutional guarantee of the right to a jury trial does not apply to misdemeanors carrying a maximum sentence of six months or less. Therefore, in such misdemeanor cases, there is no constitutional right to have a jury finding of the true of many sentence enhancements. This gives rise to an argument that Martinez-Zapata does not convert such sentence enhancement findings into elements of the offense for immigration purposes. See Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 428 n.2 (BIA 2007) ("Apprendi v. New Jersey, supra, and its progeny focus on admissions by the defendant or findings by a jury beyond a reasonable doubt. Offenses carrying maximum sentences of 6 months or less, however, are not required to be tried before a jury. See Lewis v. United States, 518 U.S. 322 (1996).") The BIA, however, has expressly left this question open. Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 430 n.6 (BIA 2007) ("We have no occasion here to decide whether we would treat as an element any such factor required by the convicting jurisdiction to be proved beyond a reasonable doubt to a court rather than a jury."), citing Harris v. United States, 536 U.S. 545 (2002), and Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004).

   (7) The sentence enhancement in Martinez-Zapata converted a Class B misdemeanor, in violation of Texas Health & Safety Code 481.121(b)(1) to a Class A misdemeanor, in violation of Texas Health & Safety Code 481.134(f)(1). Martinez-Zapata, supra, at 425. This can fairly be said to affect the "conviction" directly, since the defendant under this statute is now "convicted" of a Class A misdemeanor, rather than a Class B misdemeanor. On the other hand, a sentence enhancement that merely alters the maximum possible sentence for a conviction cannot be said to affect the conviction in the same way. Counsel can argue that this difference should lead to a distinction, but the chances of a court adopting this distinction seem limited.

   (8) Martinez-Zapata expressly applies only with respect to "any post-Apprendi sentencing factor that is shown to have been found in accordance with the criminal law protections of a jury trial and burden of proof afforded a defendant in relation to the elements of an offense." Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 (BIA 2007). Therefore, counsel for respondent can argue that a given sentence enhancement was imposed in violation of due process, or another fundamental federal constitutional right, such as the Apprendi right to jury trial, and therefore does not under the facts of this case constitute an element of the offense of conviction. Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.5 (BIA 2007).

RECORD OF CONVICTION - SENTENCE ENHANCEMENT - ELEMENTS
Matter of Martinez-Zapata, 24 I. & N. Dec. 424 (BIA 2007) (any fact, including a fact contained in a sentence enhancement, that serves to increase the maximum penalty for a crime and that is required to be found by a jury beyond a reasonable doubt if not admitted by the defendant, is to be treated as an element of the underlying offense; a conviction involving the application of such an enhancement is a conviction for the enhanced offense), superseding Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA 1992), in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). http://www.usdoj.gov/eoir/vll/intdec/vol24/3594.pdf

RECORD OF CONVICTION - SENTENCE ENHANCEMENT - ELEMENTS - OPEN QUESTION WHETHER SENTENCE ENHANCEMENT EQUALS AN ELEMENT FOR PURPOSES OF DETERMINING THE NATURE OF THE CONVICTION UNDER IMMIGRATION LAW WHERE THE CONVICTING JURISDICTION REQUIRES IT BE PROVEN BEYOND A REASONABLE DOUBT TO A COURT RATHER THAN A JURY
Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 430 n.6 (BIA 2007) ("We have no occasion here to decide whether we would treat as an element any such factor required by the convicting jurisdiction to be proved beyond a reasonable doubt to a court rather than a jury."), citing Harris v. United States, 536 U.S. 545 (2002), and Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004).

RECORD OF CONVICTION - MINUTE ORDER
Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. Jan. 25, 2010), withdrawing and superseding opinion previously published at 553 F.3d 1266 (9th Cir. Jan. 27, 2009).

NOTE: This decision withdraws a prior finding that a notation in an abstract or minute order could be used to identify the elements of the offense. This restores prior Ninth Circuit precedent. See, e.g., United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc). See ILRC practice advisory by Kathy Brady at: http://www.ilrc.org/immigration_law/pdf/Anaya_amended_practice%20advisory%201.27.pdf

First Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " RECORDS OF APPEALS COURT DECISION
James v. Holder, 698 F.3d 24, *28 (1st Cir. Oct. 19, 2012) (Whether Shepard's reference to the records of the convicting court, 544 U.S. at 23, excludes records of an appeals court decision in the same case is an unresolved question. A Ninth Circuit decision may have thought that it did, Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir.2007), but Morales relied on BIA precedents and the BIA subsequently said Morales misread those precedents. See In re N"A"M", 24 I. & N. Dec. 336, 344 (B.I.A .2007).).

RECORD OF CONVICTION - RESPONDENT'S TESTIMONY DURING REMOVAL PROCEEDINGS NOT PART OF RECORD OF CONVICTION
Conteh v. Gonzales, ___ F.3d ___, 2006 U.S. App. LEXIS 21422 (1st Cir. August 22, 2006) (respondent's testimony during removal proceedings is not part of record of conviction, for purposes of determining whether conviction constitutes aggravated felony for removal purposes), following Matter of Pichardo-Sufren, 21 I&N Dec. 330, 333-36 (BIA 1996).

Second Circuit

RECORD OF CONVICTION - RESTITUTION
Dulal-Whiteway v. US Dep't of Homeland Sec., 501 F.3d 116 (2d Cir. Sept. 19, 2007) (neither a PSR, nor a statement of restitution, are included in the record of conviction; "Though the Shepard Court did not address the issue of a restitution order, its logic clearly excludes such a document [from the record of conviction]. The restitution set by a judge is based on a loss amount established by a preponderance of the evidence and need not be tied to the facts admitted by a defendant's plea. See 18 U.S.C. 1664(e) (Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.); United States v. Reifler, 446 F.3d 65, 118 (2d Cir. 2006) (rejecting defendants' contentions that the orders requiring them to make restitution for loss amounts not admitted in their plea allocutions violated their rights under the Sixth Amendment as enunciated in [United States v.] Booker, [543 U.S. 220 (2005) ], because the principle that jury findings, or admissions by the defendant, establish the maximum authorized punishment has no application to MVRA orders of restitution). In other words, the amount of restitution is not constrained by facts on which the plea necessarily rested."; "the BIA may rely only upon facts actually and necessarily found beyond a reasonable doubt by a jury or judge in order to establish the elements of the offense, as indicated by a charging document or jury instructions. For convictions following a plea, the BIA may rely only upon facts to which a defendant actually and necessarily pleaded in order to establish the elements of the offense, as indicated by a charging document, written plea agreement, or plea colloquy transcript."), disagreeing with Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006).

Third Circuit

RECORD OF CONVICTION - SENTENCING FACTS INSUFFICIENT
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) ("Further, we may not look to factual assertions in the judgment of sentence. Facts a judge considers in making a discretionary sentencing determination are not necessarily admitted by the defendant. Cf., Commonwealth v. Lane, 941 A.2d 34, 38 (2008). Accordingly, factual assertions contained only in a judgment of sentence may not be considered under the modified categorical approach."; "The judgment of sentence also was not an appropriate basis for determining the amount of marijuana involved in Evanson's offense for a related reason. 8 U.S.C. 1229a(c)(3)(A) requires that the Government prove removability by clear and convincing evidence. The amount recited in the judgment of sentence was not itself necessarily based on clear and convincing evidence.")

Fifth Circuit

REMOVAL PROCEEDINGS " EVIDENCE " SEALED PRESENTENCE REPORT
United States v. Iqbal, 684 F.3d 507 (5th Cir. 2012) (affirming district court order releasing portions of the presentence report from a criminal case to DHS for use in removal proceedings, because the reasons for confidentiality can be outweighed when [as here] the moving party can show a compelling, particularized need for disclosure to meet the ends of justice.); quoting United States v. Huckaby, 43 F.3d 135, 139 (5th Cir. 1995). Note: Criminal defense counsel must therefore contest facts in the PSR that would prove damaging in later removal proceedings.

RECORD OF CONVICTION -- FIREARMS SENTENCE ENHANCEMENTS NOT USED TO DETERMINE NATURE OF CONVICTION -- CATEGORICAL ANALYSIS
Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (sentencing factor notation in state court journal entry form indicating that offense was committed with a firearm could not be used under modified categorical approach to support BIA determination that noncitizen had pleaded guilty to portion of divisible statute that involved use of a deadly weapon, since sentencing factors frequently refer to facts neither alleged nor admitted in court).

Sixth Circuit

RECORD OF CONVICTION - PRELIMINARY HEARING TRANSCRIPT
United States v. Medina-Almaguer, 559 F.3d 420 (6th Cir. Mar. 12, 2009) ("Even granting for the sake of argument that a sentencing court may consult a preliminary-examination transcript in investigating the nature of a prior offense, this transcript does not show that Medina-Almaguer "necessarily admitted" to a "drug trafficking offense" when he pleaded guilty to violating 11352(a). Much like a police report or a complaint application-upon which sentencing courts may not rely in determining the nature of a prior conviction, see Shepard, 544 U.S. at 16-a preliminary examination deals with a gateway step in the criminal process: determining whether probable cause exists for detaining a suspect before a potential indictment or information. . . . [T]hat testimony showed only that the examining magistrate properly concluded that there was "sufficient cause" to believe that Medina-Almaguer violated 11352(a). Medina-Almaguer did not admit that conduct during the examination, nor so far as the record shows did he admit that conduct when he pleaded guilty.").

NATURE OF OFFENSE - RECORD OF CONVICTION - AFFIDAVITS OF COMPLAINT
United States v. Jones, 453 F.3d 777, 780 (6th Cir. 2006) (sentencing court may rely on affidavits of complaint containing statements of fact "only" for "the limited inquiry of whether prior offenses constitute a single criminal episode or multiple episodes" for purposes of determining whether prior offenses qualify as "convictions [for crimes] ... committed on occasions different from one another" under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1)); accord, United States v. Wells, 473 F.3d 640, 647 n. 5 (6th Cir.2007).

Seventh Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " PRESENTENCE REPORT
United States v. Aviles-Solarzano, 623 F.3d 470, 474 (7th Cir. Oct. 13, 2010) (An unsubstantiated summary of an indictment in a presentence investigation report does not satisfy the Supreme Court's requirement of a judicial record and thus is not (unless its accuracy is unquestioned-an important qualification to which we'll return) a proper basis for classifying a defendant's prior crimes for purposes of federal sentencing.; The defendant's lawyer didn't question the accuracy of the summary in the presentence investigation report, even though she had access to the indictment; it is a public document, as we said. She could have gotten hold of a certified copy of the indictment and compared it with the summary in the presentence investigation report, just as the defendant's lawyer in Rodriguez-Gomez had done. Her failure to do so suggests fear of what she would find; and in any event, not having objected in the district court to the summary, she can prevail on appeal only by showing that the district judge committed a plain error (an error at once evident and prejudicial) in basing the sentence on the summary.).

DIVISIBLE STATUTE ANALYSIS - RECORD OF CONVICTION - DOCUMENTS EXCLUDED - APPELLATE COURT DECISION
Sharashidze v. Gonzales, ___ F.3d ___, 2007 WL 777666 (7th Cir. March 16, 2007) ("Because we agree with the BIA that the complaint provided sufficient evidence that Sharashidze targeted a minor, we need not address whether the INA's definition of "record of conviction" encompasses appellate court decisions.").

Eighth Circuit

RECORD OF CONVICTION - EXCLUDED DOCUMENTS - TESTIMONY
United States v. Reyes-Solano, 543 F.3d 474 (8th Cir. Sept. 26, 2008) (Mississippi convictions for domestic assault and assault on a police officer were not categorically "crimes of violence" (defined as including twelve enumerated offenses (none at issue in this case), "or any other federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another."), so as to justify a four-level sentence enhancement under USSG 2L1.2(b)(1)(E) for illegal reentry after deportation, because "Absent state court records identifying the offense of conviction, from which the elements of that offense may be determined, the testimony of Reyes-Solano at sentencing is not sufficient proof that actual, attempted, or threatened use of force was an element of the offense and not merely conduct incidental to an offense whose essential elements did not include the use of force. Accordingly, on this record the four-level increase under 2L1.2(b)(1)(E) was improperly imposed.")

Ninth Circuit

CONVICTION " RECORD OF CONVICTION " FACTUAL BASIS - AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Marcia-Acosta, ___ F.3d ___ (9th Cir. Mar. 24, 2015) (Arizona conviction of aggravated assault, in violation of Arizona Revised Statutes 13-1203 and 13-1204, was not a "crime of violence" for illegal re-entry sentencing purposes; district court erred in relying solely upon a statement by defense counsel during plea colloquy in determining elements to which the defendant entered his plea, since a sentencing court may not rely on an extraneous factual-basis statement details, standing alone, to supply the narrowing for purposes of the modified categorical approach).

CONVICTION " NATURE OF CONVICTION " RECORD OF CONVICTION "TESTIMONY BEFORE IMMIGRATION JUDGE
Cervantes v. Holder, ___ F.3d ___, ___, 2014 WL 6463031 (9th Cir. Nov. 19, 2014) (an alien's description of his crimes is not an acceptable source of evidence under the modified categorical approach.); see Sandoval"Lua v. Gonzales, 499 F.3d 1121, 1129 n. 7 (9th Cir. 2007) ([U]nder the modified categorical approach we may not consider ... testimony about the alien's criminal conduct.), abrogated on other grounds by Young v. Holder, 697 F.3d 976, 979 (9th Cir.2012) (en banc).

CONVICTION " NATURE OF CONVICTION " RECORD OF CONVICTION " RESPONDENTS TESTIMONY IN REMOVAL PROCEEDINGS
Pagayon v. Holder, ___ F.3d ___, 2011 WL 6091276 (9th Cir. Dec. 8, 2011) (per curiam), granting rehearing, withdrawing previous opinion, 642 F.3d 1226 (9th Cir.2011), and denying rehearing en banc ("Pagayons admission of the allegation that his drug offense involved methamphetamine was a pleading stage admission. By contrast, his admission that he was convicted of the crimes charged in the information offered by the government was an evidentiary stage admission. Under Perez-Mejia, the IJ could properly consider the former, but not the latter, in determining whether Pagayon was removable, because it is testimony made during the fact-finding evidentiary stage.). http://www.ca9.uscourts.gov/datastore/opinions/2011/12/08/07-74047.pdf

CONVICTION " RECORD OF CONVICTION " ADMISSIONS BY RESOPONDENT
Perez-Mejia v. Holder, ___ F.3d ___, ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011) (When the modified categorical approach must be employed, an alien's factual admissions may not be used as evidence to establish that he is removable, unless those admissions are included in the narrow, specified set of documents that are part of the record of conviction, such as a plea agreement.); see S"Yong v. Holder, 600 F.3d 1028, 1035"36 (9th Cir.2010); Tokatly v. Ashcroft, 371 F.3d 613, 623"24 (9th Cir.2004); Huerta"Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003).

CATEGORICAL ANALYSIS " RECORD OF CONVICTION " ADMISSIONS IN PROCEEDINGS
Pagayon v. Holder, 642 F.3d 1226 (9th Cir. Jun. 24, 2011) (per curiam) (removal order was properly based, in part, on admissions petitioner made before the immigration judge: Pagayon's admission was needed only to confirm that the conviction was for the charged crime. . . . An IJ may consider an alien's admissions regarding removability if they are corroborated by the narrow, specified set of documents that are part of the record of conviction, Tokatly, 371 F.3d at 620. Absent some claim of mistake, duress or the like"which Pagayon does not raise"an admission is just as reliable as an explicit reference to the charging document in an abstract of judgment. And since an admission like Pagayon's does no more than establish that the conviction at issue was for the crime charged, it does not invite the IJ to improperly relitigate the criminal case by inquiring into the underlying facts of the crime.). NOTE: In this case, the information indicated that the respondent was charged with possession of meth, but the abstract of judgment did not specify a controlled substance. The respondent's admission was only that he pleaded guilty as charged in the information. Therefore, he did not admit to any facts that were not already in the record of conviction.

RECORD OF CONVICTION " FACTS VS. ELEMENTS " ADMISSIONS OF RESPONDENT DURING PROCEEDINGS
Perez-Mejia v. Holder, ___ F.3d ___, 2011 WL 1496990 (9th Cir. Apr. 21, 2011) (California conviction of possession of cocaine for sale, in violation of Health and Safety Code 11351, is not necessarily a controlled substances offense for purposes of triggering inadmissibility where the record of conviction is silent on the substance involved; admission of the respondent in the course of proceedings is insufficient to establish inadmissibility, since the admission is not part of the accepted record of conviction).

NATURE OF CONVICTION - RECORD OF CONVICTION - TESTIMONY OF RESPONDENT AT REMOVAL HEARING
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) ("the petitioner's testimony that he thought the substance was heroin does not alter the record of conviction.").

NATURE OF OFFENSE - RECORD OF CONVICTION - NONCITIZEN'S CONCESSION IN IMMIGRATION COURT DOES NOT CONSTITUTE PART OF RECORD OF CONVICTION
Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir. May 22, 2008) ("The Government does not argue, nor could it, that the IJ's reliance on Mandujano-Real's concession would suffice as a basis for removal if the BIA or the court were to determine that his conviction does not, as a matter of law, constitute an aggravated felony."), following Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 n.4 (9th Cir. 2003) (explaining that an alien's "belief about the nature of his offense is irrelevant to the purely legal question of how the offense was categorized.... The INS's contention that [the alien] is bound by [his counsel's admission] must fail"); see also Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003) (rejecting Government's argument that "Huerta waived her ability to challenge deportability before the BIA by conceding that she was removable").

RECORD OF CONVICTION - DOCUMENTS EXCLUDED - TESTIMONY OF NONCITIZEN IN REMOVAL PROCEEDINGS DOES NOT CONSTITUTE PART OF THE RECORD OF CONVICTION AND MAY NOT BE CONSIDERED IN DETERMINING NATURE OF OFFENSE
Sandoval-Lua v. Gonzales, ___ F.3d ___, ___ n.7, 2007 WL 2421427 (9th Cir. Aug. 28, 2007) ("The BIA improperly considered Lua's testimony before the IJ in concluding that Lua had not demonstrated his eligibility for cancellation of removal. The certified administrative record contains Lua's admission before the IJ that his 11379(a) conviction was for delivering eight ounces of methamphetamine from a friend to another person in exchange for $450. This conduct falls within 8 U.S.C. 1101(a)(43)(B)'s definition of aggravated felony, as it is not solicitation or possession for personal use. However, under the modified categorical approach we may not consider this testimony. Pursuant to Shepard, our inquiry is limited to the judicially noticeable documents listed above."), citing Cisneros-Perez v. Gonzales, 465 F.3d 386, 393 (9th Cir. 2006) (explaining that in applying the modified categorical analysis, the IJ may not look to the administrative record in removal proceedings because "[t]he IJ was not entitled to go beyond the conviction record for purposes of ascertaining the crime of which [the petitioner] was convicted").

RECORD OF CONVICTION - DOCUMENTS EXCLUDED - MINUTE ORDER
United States v. Snellenberger, __ F.3d __ 2007 WL 1977098 (9th Cir. Jul. 10, 2007) (in the context of criminal sentencing, a minute order is "not a judicial record that can be relied upon" to establish the nature of a prior conviction), amending 480 F.3d 1187 (9th Cir. 2007).

NATURE OF OFFENSE - ELEMENTS OF OFFENSE - SENTENCE ENHANCEMENTS - RECIDIVIST ENHANCEMENTS
United States v. Grisel, 488 F.3d 844 (9th Cir. Jun. 5, 2007) (en banc) (prior convictions are not elements of offense, and need not be pleaded or found beyond reasonable doubt by jury, to impose a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1): "The Court likewise preserved the exception for prior convictions in Blakely v. Washington, 542 U.S. 296, 301 (2004); United States v. Booker, 543 U.S. 220, 244 (2005); Cunningham v. California, 127 S.Ct. 856, 864, 868 (2007); and, most recently, James v. United States, 127 S.Ct. 1586, 1600 n. 8 (2007).").

RECORD OF CONVICTION - EVIDENCE OF DOMESTIC RELATIONSHIP
Cisneros-Perez v. Gonzales, ___ F.3d ___, 2006 WL 1728068 (9th Cir. Jun. 26, 2006) (California conviction of battery, in violation of Penal Code 242 (any willful and unlawful use of force or violence upon the person of another), not shown on this record under modified categorical analysis to be a crime of domestic violence, within the meaning of 8 U.S.C. 1227(a)(2)(E)(i), because there was insufficient documentation to establish a domestic relationship; dismissed counts naming spouse as victim, sentence to domestic violence counseling, and order to stay away from spouse cannot be used to establish that conviction for battery of unnamed victim was a crime of domestic violence).

DOMESTIC VIOLENCE - DOMESTIC BATTERY - CALIFORNIA CONVICTION OF SIMPLE BATTERY DID NOT QUALIFY AS DOMESTIC VIOLENCE CONVICTION WHERE RECORD OF CONVICTION DID NOT ESTABLISH NECESSARY DOMESTIC RELATIONSHIP
Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. June 26, 2006) (California conviction of simple battery, in violation of Penal Code 242, did not qualify as deportable domestic violence conviction, under INA 237(a)(2)(E)(i, 8 U.S.C. 1227(a)(2)(E)(i), where record of conviction did not establish necessary domestic relationship), opinion amended on denial of rehearing, ___ F.3d ___, 2006 WL 2819961 (9th Cir. Oct. 4, 2006) (amendment deleted the following sentence: "Where, as here, there are statutes directly addressing domestic violence, such as California Penal Code sections 243(e)(1) and 273.5, only the most convincing proof of the nature of a conviction for a more general crime will suffice to establish a crime of domestic violence." 451 F.3d at 1059-60 [emphasis in original]).
http://caselaw.lp.findlaw.com/data2/circs/9th/0471717p.pdf

RECORD OF CONVICTION - DOCUMENTS EXCLUDED - ADMISSION OF RESPONDENT IN PROCEEDINGS
Garcia-Lopez v. Ashcroft, 334 F.3d 840 n.4 (9th Cir. June 26, 2003) (respondent's representative cannot in proceedings concede a conviction that is not a conviction: "The INS also contends that Garcia-Lopez "admitted" that he was convicted of a felony because, in support of the initial application, Garcia-Lopez's accredited representative stated that Garcia-Lopez had received a felony sentence. As an initial matter, the representative's statement was patently inaccurate, as Garcia-Lopez was never actually sentenced. More importantly, Garcia-Lopez's belief about the nature of his offense is irrelevant to the purely legal question of how the offense was categorized or what the maximum penalty was. Similarly, the statement of Garcia-Lopez's representative as to a matter of law has no legal effect. See Matter of Ramirez-Sanchez, 17 I & N Dec. 503 (BIA 1980). The INS's contention that Garcia-Lopez is bound by this statement must fail.").

Lower Courts of Ninth Circuit

RECORD OF CONVICTION - CONDITIONS OF PROBATION
State v. Colquitt, ___ Wash. App. ___, 2006 Wash. App. LEXIS 1383 (Jun. 29, 2006) ("The agreement Colquitt entered into to participate in drug court was neither a stipulation that the substance in the underlying charge was a controlled substance, nor a stipulation to the sufficiency of the evidence. And, although he agreed that the police report that included a field test of the substance could be admitted, there were no laboratory test results. We hold that the police report and field test were not sufficient evidence of a controlled substance. We reverse and remand to vacate the conviction.").