Criminal Defense of Immigrants


§ 8.67 (B)

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(B)  Probation and Presentence Reports.  The probation report does not constitute part of the conviction record.[170]  See § 16.32, infra.

[170] Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. Sept. 11, 2003); Matter of Y, 1 I. & N. Dec. 137 (BIA 1941) (the report of a probation officer may not be considered in determining whether a crime involves moral turpitude).  Cf. United States v. Kovac, 367 F.3d 1116 (9th Cir. May 12, 2004) (hearsay statement attributed to defendant in state presentence report that describes conduct underlying prior criminal conviction is insufficient to designate defendant a career offender under U.S.S.G. § 4B1.1).