Safe Havens

(H)  Limitation to the Record of Conviction.  This type of case is so emotionally difficult that courts have a hard time following the law.  The general rule is that in assessing whether a conviction falls within a ground of deportation, the court is limited to the record of conviction.[780]  Counsel should bend every effort to force them to do so in this context.  Some circuits, however, seem to be taking the position that they can go outside the record of conviction to establish the age of the victim to show a conviction falls within this category, so it is safer to make sure the conviction cannot be considered sexual abuse of a minor even if the court improperly consults, or goes outside of, the record of conviction.

[780] Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Oregon convictions of first degree burglary and attempted first degree kidnapping, in violation of Ore. Rev. Stat. § § 163.225, 163.235, found not to be “crimes of domestic violence,” under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), for deportation purposes, since there was no evidence in the record of conviction that victim was protected person under that statute, and Immigration Judge was precluded from relying upon testimony adduced at removal hearing, including admissions by respondent).