Where a divisible statute is involved, the court may conduct a limited review of the record of conviction to identify which offense, among the several different offenses included within the divisible statute, was the particular offense of conviction.[54]  The court should not need to resort to the record of conviction where the statute is not divisible.[55]  

 

There is an important distinction between identifying the nature of the conviction, versus proving the fact of conviction.  The documents that make up the record of conviction for purposes of determining the 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.[56]  While cases have determined which documents make up the “record of conviction,”[57] the documents that may be presented to prove the fact of conviction are listed under the Act and regulations.[58]  Although similar, 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.[59]  The regulations also have a catch-all provision that does not apply to the “record of conviction” for divisible-statute analysis.[60]  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, than may be considered as part of the record of conviction for purposes of deciding whether a given conviction falls within a ground of deportation.[61]

[54] See N. Tooby, Aggravated Felonies § § 4.9-4.15 (2003); N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude, Chapter 7 (2005).

[55] See N. Tooby, Aggravated Felonies § § 4.1-4.8 (2003); N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude, Chapter 6 (2005).

[56] 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.”).

[57] See § § 7.11-7.12, infra.

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

[59] 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. March 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. August 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).

[60] 8 C.F.R. § 1003.41(d).

[61] Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. September 28, 2004) (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)); Fequiere v INS, 279 F.3d 1325 (11th Cir. January 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). 

Eleventh Circuit

RECORD OF CONVICTION - DIVISIBLE STATUTE ANALYSIS - COURT CAN LOOK ONLY AT RECORD OF CONVICTION FOR OFFENSE UNDER EXAMINATION, NOT TO THE RECORD OF A SEPARATE OFFENSE Jaggerneuth v. U.S.
Atty General, ___ F.3d ___, 2005 WL 3454321 (11th Cir. Dec. 19, 2005) (in determining the nature of a conviction for immigration purposes, the court may look only to the record of conviction of that specific offense, and not to the record of a separate offense of which the defendant was convicted), citing Matter of Short, 20 I. &. N. Dec. 136,139 (BIA 1989) (IJ could not rely on a separate conviction to determine whether the conviction at issue was a crime of moral turpitude, since moral turpitude cannot be viewed as "aris[ing] from some undefined synergism by which two offenses are combined to create a crime involving moral turpitude, where each crime individually does not involve moral turpitude").