Safe Havens

 

The record of conviction generally includes “the charge (indictment[, complaint, information, citation, or other charge to which a plea or verdict was entered]), plea, verdict and sentence.  The evidence upon which the verdict was rendered may not be considered, nor may the guilt of the defendant be contradicted.”[73] 

 

To determine whether Petitioner was convicted of an aggravated felony and is therefore removable under 8 U.S.C. § 1227(a)(2)(A)(iii), we employ the analysis set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Tokatly v. Ashcroft, 371 F.3d 613, 621-22 & n. 8 (9th Cir. 2004). The essence of the Taylor approach is that the sentencing court may not look beyond the record of the prior conviction to the facts underlying it. Tokatly, 371 F.3d at 620.[74]

 

In Shepard v. United States,[75] the Supreme Court reaffirmed Taylor v. United States,[76] and made clear that in the context of the Armed Career Criminal Act (“ACCA”),[77] the record of conviction for a conviction obtained through a guilty plea is limited to “the charging document, the terms of a plea agreement or transcript of colloquy between 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.”[78]  Just as the Taylor reasoning has been adopted into the immigration context, the Shepard decision should be equally influential in immigration cases to limit the analysis to certain documents within the record of conviction.

 

Technically speaking, the record of conviction may be used only to identify the particular offense of conviction, where more than one offense is included within the divisible statute of conviction, and may not be used to convert the quest to determine the identity of the offense of conviction and its essential elements into a broader investigation into the facts of the case, even those facts shown by the record of conviction.  See § 6.22, supra. 

 

Some courts, however, will use against the defendant any facts shown in the record of conviction to bring the offense of conviction within a ground of deportability.  There are several contexts in which courts are especially tempted to go outside the record: (a) to determine the age of the victim to see whether the offense constitutes aggravated felony sexual abuse of a minor[79] or an offense involving a child under the domestic violence deportation ground;[80] (b) to determine the existence of a domestic relationship between the defendant and the victim that might bring a conviction within the domestic violence deportation ground;[81] and (c) to determine the amount of loss to the victim(s) of a fraud offense, to see whether it constitutes an aggravated felony fraud conviction.[82] 

 

This practice, however, can be challenged on the ground that the determination of whether a given conviction falls within a ground of deportation is determined only by the elements of the offense of conviction, rather than the facts, even if the facts are contained within the record of conviction.  If the court does decide it may go outside the record of conviction to consider these additional facts, then a conviction whose record does not trigger deportation may nonetheless trigger deportation when additional facts outside the record are added to the court’s consideration.  In these instances, certain offenses that would be safe havens without consideration of additional facts may no longer be safe, and it is necessary to obtain different convictions to avoid these grounds of deportation.

           

[73] Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933).  Accord, Matter of Short, 20 I. & N. Dec. 136, 137-38 (BIA 1989) (including indictment, plea, verdict, and sentence in “record of conviction”); Matter of Esfandiary, 16 I. & N. Dec. 659, 661 (BIA 1979) (including charge or indictment, plea, verdict, and sentence in “record of conviction”); Matter of Ghunaim, 15 I. & N. Dec. 269, 270 (BIA 1975) (including charge or indictment, plea, judgment or verdict, and sentence in “record of conviction”), holding modified by Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994); Matter of C, 5 I. & N. Dec. 65, 71 (BIA 1953).  See also Wadman v. INS, 329 F.2d 812 (9th Cir. 1964); Matter of Esfandiary, 16 I. & N. Dec. 659 (BIA 1979) (malicious trespass, information charged intent to commit petty larceny).

[74] Li v. Ashcroft, 389 F.3d 892, 896 (9th Cir. Nov. 19. 2004).

[75] Shepard v. United States, 125 S.Ct. 1254 (March 7, 2005).

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

[77] 18 U.S.C. § 924(e).

[78] Shepard v. United States, 125 S.Ct. at 1263 (March 7, 2005).

[79] See § § 7.96, et seq., infra.

[80] See § 7.157, infra.

[81] See § 7.154, infra.

[82] See § 7.82, infra.