Criminal Defense of Immigrants


§ 8.64 i. Record of Conviction

Skip to § 8.

For more text, click "Next Page>"

In entering a plea, it is important for counsel to review each element of the record of conviction to ensure that it does not contain a fact, or an admission of a fact, that will bring the conviction within a conviction-based ground of deportation or inadmissibility, or trigger other adverse immigration consequences.  The elements of the record of conviction are described in detail in Chapter 16, Nature of a Conviction, infra.


The record of conviction includes “the charge (indictment[, complaint, information, citation, or other charge to which a plea or verdict was obtained]), 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.”[165]  These and additional documents that have been specifically found to be part of the record of conviction are discussed below.  See § § 16.22-16.28, infra.  The record of conviction may also contain additional documents, that would not normally be considered part of the record of conviction, if those documents have been incorporated into the guilty plea or verdict.[166]

[165] 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).

[166] United States v. Espinoza-Cano, 456 F.3d 1126 (9th Cir. Aug. 8, 2006) (California conviction for grand theft, in violation of Penal Code § 487(a), is an aggravated felony theft offense where the police report, incorporated into the criminal complaint by the court, upon stipulation of the parties and admission of the defendant in open court that the facts in the police report constituted the factual basis underlying the guilty plea, indicated that the theft involved personal property, rather than services); Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. July 11, 2005) (“Although police reports and complaint applications, standing alone, may not be used to enhance a sentence following a criminal conviction, Shepard, 125 S.Ct. at 1257, 1259-60, the contents of these documents may be considered if specifically incorporated into the guilty plea or admitted by a defendant. United States v. Smith, 390 F.3d 661, 664-65 (9th Cir. 2004) (approving use of “the factual basis for the charge, as set forth by the prosecutor at the change of plea hearing” to which “defense counsel did not object”); United States v. Lopez-Patino, 391 F.3d 1034, 1037-38 (9th Cir. 2004) (admissions the defendant made at his plea colloquy); Ferreira v. Ashcroft, 390 F.3d 1091, 1098-1100 (9th Cir. 2004) (restitution order referenced in a plea agreement).”).



Ninth Circuit

Fregozo v. Holder, 576 F.3d 1030 (9th Cir. Aug. 12, 2009) ("a defendants nolo contendere plea pursuant to People v. West, 91 Cal. Rptr. 385 (Cal. 1970), does not establish factual guilt, and therefore, 'unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the factual predicate to support a determination that the conviction was generic."), citing United States v. Vidal, 504 F.3d 1072, 1089 (9th Cir. 2007) (en banc).