Criminal Defense of Immigrants


§ 8.51 a. Offense of Conviction

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The record of conviction generally includes “the charge (indictment[, complaint, information, citation, or other charge to which a plea or verdict was entered]), plea, verdict and sentence.  The evidence upon which the verdict was rendered may not be considered, nor may the guilt of the defendant be contradicted.”[113]  See § § 16.15-16.33, infra.  Concerning the importance of the date of the conviction, and the date of the offense of conviction, see § § 8.10(B), (C), supra.


To determine whether Petitioner was convicted of an aggravated felony and is therefore removable under 8 U.S.C. § 1227(a)(2)(A)(iii), we employ the analysis set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Tokatly v. Ashcroft, 371 F.3d 613, 621-22 & n. 8 (9th Cir. 2004). The essence of the Taylor approach is that the sentencing court may not look beyond the record of the prior conviction to the facts underlying it. Tokatly, 371 F.3d at 620.[114]


In Shepard v. United States,[115] the Supreme Court reaffirmed Taylor v. United States,[116] and made clear that in the context of the Armed Career Criminal Act (“ACCA”),[117] the record of conviction for a conviction obtained through a guilty plea is limited to “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”[118]  Just as the Taylor reasoning has been adopted into the immigration context, the Shepard decision should be equally influential in immigration cases to limit the analysis to certain documents within the record of conviction.[119]


Technically speaking, the record of conviction may be used only to identify the particular offense of conviction, where more than one offense is included within the divisible statute of conviction, and may not be used to convert the quest to determine the identity of the offense of conviction and its essential elements into a broader investigation into the facts of the case, even those facts shown by the record of conviction.  See § § 16.1-16.14, infra.[120]


Some courts, however, will use any facts shown in the record of conviction against the defendant to bring the offense of conviction within a ground of deportability.  It is therefore important to avoid making certain factual admissions.  See § 8.63, infra.

[113] Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933).  Accord, Matter of Short, 20 I. & N. Dec. 136, 137-38 (BIA 1989) (including indictment, plea, verdict, and sentence in “record of conviction”); Matter of Esfandiary, 16 I. & N. Dec. 659, 661 (BIA 1979) (including charge or indictment, plea, verdict, and sentence in “record of conviction”); Matter of Ghunaim, 15 I. & N. Dec. 269, 270 (BIA 1975) (including charge or indictment, plea, judgment or verdict, and sentence in “record of conviction”), holding modified by Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994); Matter of C, 5 I. & N. Dec. 65, 71 (BIA 1953).  See also Wadman v. INS, 329 F.2d 812 (9th Cir. 1964); Matter of Esfandiary, 16 I. & N. Dec. 659 (BIA 1979) (malicious trespass, information charged intent to commit petty larceny).

[114] Li v. Ashcroft, 389 F.3d 892, 896 (9th Cir. Nov. 19. 2004).

[115] Shepard v. United States, 125 S.Ct. 1254 (Mar. 7, 2005).

[116] Taylor v. United States, 495 U.S. 575 (1990).

[117] 18 U.S.C. § 924(e).

[118] Shepard v. United States, 125 S.Ct. at 1263 (Mar. 7, 2005).

[119] Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. Aug. 2, 2005) (Shepard v United States, 125 S.Ct. 1254 (2005) applies to immigration cases).

[120] United States v. Torres-Diaz, 438 F.3d 529 (5th Cir. Jan. 30, 2006) (for purposes of determining which one of the various alternative subdivisions of the statute of a prior conviction was the subdivision of which the defendant was convicted, the charging document filed in the prior case unambiguously identifying the one particular subdivision charged suffices to carry that burden, absent anything in the record affirmatively casting doubt on, or creating an ambiguity respecting, that conclusion, at least where no claim is made before the district court that the prior conviction was in actuality under a different subdivision than that reflected in the charging instrument or in actuality the conviction was based on some other, materially different charging document).