Safe Havens

The judgment and sentence are included in the record of conviction.[156]  The record of conviction may in some circumstances include the court’s statement at sentence.[157]  In determining whether a conviction was for a CMT, the district court considered the statement of a Spanish court’s findings contained in the judgment as rendered, where the noncitizen was convicted by the court without a jury.[158]  The court held that since the Spanish judgment indicated that the crime of homicide was “with a mitigating circumstance” sufficient to justify the minimum penalty, and since the homicide was committed in a “blind rage,” the crime did not involve moral turpitude.[159]  The “transcript from the plea and sentence hearing of the criminal proceedings . . . is a part of the record of conviction and was properly relied on by the Immigration Judge.”[160] 

On the other hand, the courts cannot depend only upon a label indicated in an abstract of judgment in determining whether a conviction falls within the ground of deportation.  The court must examine the statute and the elements to which the noncitizen pleaded or of which s/he was found guilty.[161]

[156] United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933).

[157] Matter of Pataki, 15 I. & N. Dec. 324, 326 (BIA 1975); Matter of K, 4 I. & N. Dec. 490, 491 (BIA 1951) (immigration court may consider, as part of record of conviction in determining the nature of a conviction under a divisible statute, any statement of record made by the court in sentencing a defendant).

[158] Vidal y Planas v. Landon, 104 F.Supp. 384 (S.D. Cal. 1952).

[159] Id.

[160] Matter of Madrigal-Calvo, 21 I. & N. Dec. 323, 326 (BIA 1996).

[161] United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. May 5, 2004) (California conviction of violating Health & Safety Code § 11397(a), did not constitute an aggravated felony for purposes of enhancement of illegal re-entry sentence pursuant to U.S.S.G. § 2K1.2(b)(1)(A)(i), since the charge of conviction was in the disjunctive language of the statute, and the label of the offense in the abstract of judgment was not admissible to narrow the offense).  Cf. Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. March 4, 2003) (label placed upon an offense by the state statutory scheme is not controlling, for purposes of determining whether the offense triggers removal).