Safe Havens

(A)  The Charge to Which a Plea is Entered.  The “record of conviction” includes the charge, which may be contained in a complaint, information, indictment, or other charging paper.[83]  Only the charge of which the defendant is convicted is included in the record of conviction.  No part of the accusation of which the defendant was convicted will be considered as creating the “facts” of the case.  For example, archaic boilerplate will not be considered as becoming part of the facts of the case.

The INS also argues that the indictment contains the term “with force and arms,” necessarily referring to non-custodial provisions of the statute. This use of archaic boilerplate, unnecessarily included in many Louisiana indictment forms, regardless of whether the crime involves a use of force or arms, is virtually irrelevant to whether the charge was brought under any particular section of the simple kidnapping statute.[84]

Thus, surplusage in the charge will not be considered as part of the record of conviction.  Surplusage also includes allegations that go beyond the elements of the crime as defined by statute.[85]

            In the Ninth Circuit, the charging papers are never sufficient, in and of themselves, to establish the elements to which a noncitizen entered a plea of guilty.  Instead, the charging paper must be coupled with some other evidence from the record of conviction establishing that a plea or verdict was entered to the particular charge.[86]

[83] Matter of Truong, 22 I. & N. Dec. 1090 (BIA 1999) (information is included in record of conviction); Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587, 588 (BIA 1992) (including an information in “record of conviction”); Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933); Matter of C, 5 I. & N. Dec. 65, 71 (BIA 1953).

[84] Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996).

[85] Matter of Perez-Contreras, 20 I. & N. Dec. 615, 617 n.4 (BIA 1992) (where no element of the crime of conviction related to the use of a weapon, the statement in the criminal information that the petitioner had used a firearm was “surplusage”); Vue v. INS, 92 F.3d 696, 700-701 (8th Cir. 1996).

[86] United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (“[I]f a defendant enters a guilty plea, the sentencing court may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime. Charging papers alone are never sufficient.”); United States v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002) (“It cannot be disputed that Count One’s language sets out the generic elements of burglary . . . .  The Information alone, however, cannot support a finding that Velasco-Medina’s burglary conviction was an aggravated felony. By itself, the Information contained the elements of the crime the government set out to prove; it did not establish the elements to which Velasco-Medina actually admitted in his guilty plea.”); United States v. Belless, 338 F.3d 1063, 1068, 1069 (9th Cir. 2003) (“[T]he record indicates that Belless was charged with conduct that was a violent act and not merely a rude or insolent touching. But the record does not reveal the conduct to which he pleaded and for which he was convicted. Accordingly we cannot conclude that the trier of fact ... in this case necessarily found Belless guilty of conduct that, under a modified categorical approach, serves as a predicate offense.”).