(C)  Non-Element Facts.  Because the sentence is considered part of the record of conviction, for purposes of determining the nature of the offense, the immigration authorities at least in a divisible statute situation[149] may consider any facts contained in the sentence minutes, transcript, or judgment for purposes of seeing whether the conviction triggers a ground of deportation, inadmissibility, or disqualification from relief.  See § 16.25, infra.  In such a case, counsel should attempt to make sure the clerk’s minutes or reporter’s transcript of the sentence do not contain any evidence or facts that would indicate the offense of conviction falls within the definition of any ground of deportation or inadmissibility or factor disqualifying the client from immigration relief.  See § § 8.63-8.67, supra.

 

Specific facts giving rise to this concern include the identity, domestic relationship or age of the victim which may appear in the record of conviction via the sentencing hearing or judgment of conviction so as to establish deportability on the basis of a domestic violence conviction, or a conviction of an offense involving sexual abuse of a minor as an aggravated felony.  See § 16.7, infra.

[149] See § § 16.9-16.14, infra.

Second Circuit

SENTENCE - DATE OF CONVICTION - SENTENCE REQUIRED TO CONSTITUTE CONVICTION
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA 101(f)(8), 8 U.S.C. 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of "conviction" in 8 U.S.C. 1101(a)(48)(A), the entry of a "formal judgment of guilt . . . by a court" occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that "Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt"); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant "entered a plea of guilty, and the court entered a formal judgment of guilt").