Criminal Defense of Immigrants

(A)  Factual Admissions.  Because of the rule that factual admissions of the defendant made during the plea colloquy constitute a part of the record of conviction,[107] the facts of the offense admitted in the plea agreement by the defendant as being true constitute part of the record of conviction for purposes of determining which offense, within a divisible statute, constitutes the offense of conviction.  See § 16.24, infra.

It is therefore urgent to take special care in drafting this portion of the plea agreement to ensure that the defendant does not admit as true any fact that would bring the conviction within a ground of deportation.  See § § 8.63-8.67, infra. 

[107] Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. July 16, 2004) (defendant’s factual admissions during plea hearing may be used to identify particular elements of divisible statute that form the offense of conviction); Matter of Madrigal, 21 I. & N. Dec. 323 (BIA 1996) (admission by the defendant during plea hearing that weapon was a firearm); Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979) (even though the rest of the record of conviction contained no reference identifying the particular drug involved, the defendant’s admission he possessed heroin, contained in the reporter’s transcript of the guilty plea hearing, was sufficient to establish that the drug possessed was proscribed by federal law), distinguishing Matter of Cassisi, 10 I. & N. Dec. 136 (BIA 1963).  See also Shepard v. United States, 125 S.Ct. 1254, 1263 (Mar. 7, 2005).