(C)  Police Reports.  A police report, or probable cause statement based on a police report, cannot be used to prove a conviction.  It is not part of the record of conviction.[140]  Police reports may also not be used to determine whether a noncitizen is eligible for relief as a matter of discretion,[141] or to prove the existence of a conviction.[142]

 

An affidavit of the arresting officer, considered part of the conviction record under New York law, was held relevant in determining the nature of conviction.[143]  This decision, however, must be considered an aberration, since these documents contain disputable facts, and do not establish elements of the offense.

 

Additionally, in a related context, the determination of whether a state conviction constituted an aggravated felony, the court looked to the police reports and found that, regardless of the elements of the statute of conviction, the defendant’s conduct clearly met the federal test for sexual abuse of a minor.[144]  This is an example of an unpopular offense resulting in a court violating customary rules of law, and should not be followed.

Our review of the administrative record has revealed that the immigration judge considered as “adverse factors” two police reports that implicated petitioner in criminal activity. Petitioner was never prosecuted for these alleged crimes, apparently because the prosecuting authorities decided that they had insufficient evidence to prosecute. In our view, these police reports were not probative of anything and should not have been considered as “adverse factors.” Cf. Rassano v. INS, 7 Cir., 1974, 492 F.2d 220. We are quite concerned about the consideration of and reliance on these police reports by the immigration judge and would be tempted to remand for reconsideration were this a closer case.  But since the other evidence revealed, as the immigration judge observed, a “rather lengthy, involved and complicated involvement with law,” and since the petitioner has failed to raise the point on review, we do not think that the consideration of these reports warrants our reversing the Board’s decision. The scope of our review of the Board’s decisions on whether to grant discretionary relief is quite limited. See United States ex rel. Hintopolous v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652; Carrasco-Favela v. INS, 5 Cir., 1977, 563 F.2d 1220, 1222.[145]

 

Because of their inherent unreliability, “[p]olice reports have generally been excluded [at criminal trials] except to the extent to which they incorporate firsthand observations of the officer.”[146]  The rule’s legislative history indicates that: “the reason for this exclusion is that the observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between police and the defendant in criminal cases.”  Reports of “law enforcement personnel” included in Federal Rule of Evidence 803(8) are generally regarded as unreliable if prepared in an adversarial setting.[147]  The Ninth Circuit excluded a report prepared by an INS inspector during the interrogation of a noncitizen at the border, where the suspicion was alien smuggling and the setting adversarial and investigatorial in nature.[148]

 

            One area where it appears that a police report may be considered is when a federal court is determining a sentence for a noncitizen convicted of illegal re-entry under INA § 276, 8 U.S.C. § 1326.[149]

[140] United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (police reports inadmissible as part of record of conviction, even if they fall within business or official records exception to hearsay rule, citing Federal Rule of Evidence 803(8)(B)); Sierra-Reyes v. INS, 585 F.2d 762 (5th Cir. 1978) (although immigration judge acted improperly in considering police reports implicating alien in criminal activity as “adverse factors” bearing on discretionary relief from deportation, reversal was not required in view of other evidence of record); Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996).  “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.  Therefore, the police report should not have been considered to determine whether the specific offense of which the respondent was convicted constitutes a firearms violation.”).  Cf. Shepard v. United States, 125 S.Ct. 1254 (March 7, 2005) (police reports are not part of the record of conviction for purposes of the Armed Career Criminal Act); United States v. Allen, 282 F.3d 339 (5th Cir. 2002) (district court improperly relied on police report to determine whether prior conviction was a “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii)).

[141] Matter of Arreguin, 21 I. & N. Dec. 38 (BIA 1995); but see Henry v. INS, 74 F.3d 1, 5-7 (1st Cir. 1997); Matter of Grijalva, 19 I. & N. Dec. 713 (BIA 1988).

[142] Matter of Teixeira, 21 I. & N. Dec. 316, 319 (BIA 1996).  See also INA § 240(c)(3)(B), 8 U.S.C. § 1229a(c)(3)(B); 8 C.F.R. § 1003.41.

[143]  Matter of PC, 8 I. & N. Dec. 670 (BIA 1960) (in narcotics case, affidavit of arresting officer and laboratory report considered part of conviction record under New York law were relevant in determining nature of the crime).

[144] Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (analyzing Mass. Gen. Laws ch. 265 § 13B).

[145] Sierra-Reyes v. INS, 585 F.2d 762, 764 n.3 (5th Cir. 1978).

[146] F. R. Evid. 803(8)(B) reads:  “(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”  See also advisory note to F.R.Evid. 803(8)(B).

[147] United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979).  See also United States v. Orellana-Blanco, 294 F.3d 1143 (9th Cir. June 26, 2002) (holding inadmissible as a violation of the Confrontation Clause a police summary of an interview with the defendant, which fell within the criminal case exclusion to the hearsay exception for public records, and was not an admission made by defendant or adopted by him).

[148] United States v. Pena-Gutierrez, 222 F.3d 1080 (9th Cir. 2000).

[149] United States v. Londono-Quintero, 289 F.3d 147 (1st Cir. May 6, 2002).

RECORD OF CONVICTION - POLICE REPORTS
Shepard v. United States, __ U.S. __ (March 07, 2005) (a court sentencing under the Armed Career Criminal Act may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary).
http://laws.findlaw.com/us/000/03-9168.html      Relying on its sentencing enhancement cases, the First Circuit has refused to bar an immigration factfinder from examining a police report as part of the record of conviction in determining whether a noncitizen has been convicted of an aggravated felony. Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (relying on United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and United States v. Shepard, 231 F.3d 56 (1st Cir. 2000) to hold that there is no due process problem where factfinder considers police report as part of the record of conviction).  Yesterday's Shepard decision overruled United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and reversed Shepard.  In light of this development, practitioners may take the position that Emile is no longer good law regarding whether police reports are part of the record of conviction because the Supreme Court has expressly rejected the reasoning on which it relied.      Thanks to Dan Kesselbrenner for this analysis.