Criminal Defense of Immigrants

The documents that make up the record of conviction for determining the nature of the offense of conviction (i.e., elements to which a noncitizen entered a plea of guilty) are not the same as the documents that may be considered by the immigration authorities in establishing the mere existence of a conviction.[226]  While cases have determined which documents make up the “record of conviction,”[227] the documents that may be presented to prove the fact of conviction are listed under the Immigration and Nationality Act and regulations.[228]  The two lists are not the same.[229]  The documents required to demonstrate the fact of conviction, for example, do not explicitly include charging documents.  A presentence report may be examined to determine the fact of conviction, but not the nature of the conviction.[230]  The regulations also have a catch-all provision describing documents that may be considered in determining the existence of a conviction that does not apply to the “record of conviction” for divisible statute analysis.[231]  Generally, the courts will accept a broader range of evidence to establish the existence of a conviction, including admissions made by the noncitizen in immigration court,[232] than they are allowed to consult to determine the elements of the conviction to determine whether it triggers a ground of removal.  However, the range of acceptance is not unlimited.[233]  Even when the immigration authorities present such documentation, the documents may still be challenged as insufficient.[234]

Courts are sometimes confused by the distinction between the existence versus the nature of a conviction.[235]  In Rosales-Pineda v. Gonzales,[236] the Seventh Circuit found that an FBI rap sheet[237] indicating conviction of a controlled substances offense, in conjunction with corroborating evidence, “reasonably indicated the existence of a criminal conviction.”  Although noting the distinction between establishing the existence of a conviction and establishing that the nature of the conviction renders a noncitizen removable, the court assumed that the mere existence of an unspecified controlled substances offense was sufficient to disqualify the nonimmigrant from relief under INA § 212(h), without addressing the exception allowing INA § 212(h) relief for someone inadmissible based upon first-time simple possession of under 30 grams of marijuana.[238]

[226] See Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (documents listed at 8 C.F.R. § 1003.41 are used to determine existence of conviction, not to determine under categorical analysis whether conviction triggers ground of removal; pre-sentence investigation is not part of the record of conviction for purposes of determining nature of conviction, only its existence); Matter of Teixiera, 21 I. & N. Dec. 316, 319 (holding that a police report does not belong on either list: “The only document introduced into evidence that we consider to be part of the respondent’s “record of conviction,” or that fits any of the regulatory descriptions found at 8 C.F.R. § 1003.41 for documents that are admissible as evidence in any proceeding before an Immigration Judge in proving a criminal conviction, is the record of plea, verdict, and sentence. See 8 C.F.R. § § 1003.41(a)(2), (5), (6). The police report is not part of a ‘record of conviction,’ nor does it fit any of the regulatory descriptions. Cf. 8 C.F.R. § 1003.41.”).

[227] See § § 16.22-16.33, infra.

[228] INA § 240(c)(3)(B), 8 U.S.C. § 1129a(c)(3)(B); 8 C.F.R. § 1003.41.

[229] Note that in implementing the final regulation listing documents admissible as proof on conviction, the title of the rule was changed from “Record of Conviction” to “Evidence of Criminal Conviction” to more accurately reflect the content of the rule.  Att’y Gen. Order No. 1764-93, Executive Office for Immigration Review; Criminal Conviction Records, 58 Fed.Reg. 38952, 38953 (July 21, 1993).

[230] Compare United States v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. June 9, 2003) (government’s burden of proving existence of aggravated felony to enhance illegal re-entry sentence by clear and convincing evidence was satisfied by presentence report listing crime of conviction plus noncitizen’s admission in application for benefits filed with the INS to having committed voluntary manslaughter), with Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (statement concerning underlying facts of offense recounted in the PSR does not determine that these facts are those to which the defendant pleaded guilty; it is not what the person did but the crime of conviction that is decisive for immigration purposes).  See also United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003) (presentence report that failed to identify the exact statute of conviction is legally insufficient to establish that a state conviction fell within the crime of violence definition of U.S.S.G. § 2L1.2 (2001) for purposes of sustaining a 16-level sentence enhancement for illegal re-entry).

[231] 8 C.F.R. § 1003.41(d).

[232] Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. Sept. 28, 2004) (en banc), cert. denied, 125 S.Ct. 2245 (2005) (ambiguous court record held sufficient to establish that respondent had been convicted of a firearms offense, and was thus not eligible for a waiver of deportability under INA § 212(c), 8 U.S.C. § 1182(c)); Fequiere v INS, 279 F.3d 1325 (11th Cir. Jan. 25, 2002) (the forms of evidence listed in INA § 240, 8 U.S.C. § 1229a are not exclusive, and respondent’s admission under oath of conviction constituted clear and convincing evidence in removal hearing, when the government submitted no documentary evidence such as a conviction record from the sentencing court). 

[233] See, e.g., Francis v. Gonzalez, 442 F.3d 131 (2d Cir. Mar. 27, 2006) (Jamaican rap sheet contained in police report was, by itself, insufficient to demonstrate the existence of a “conviction” for immigration purposes, since the document by itself did not show adjudication of guilt; commentary to 8 C.F.R. § 1003.41(d) suggests rap sheets admissible but not conclusive).

[234] See, e.g., Francis v. Gonzales, 442 F.3d 131, 142-143 (2d Cir. Mar. 27, 2006); Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. Sept. 28, 2004) (en banc), vacating and withdrawing previous opinions, 358 F.3d 828 (11th Cir. Jan. 29, 2004), and 335 F.3d 1269 (11th Cir. June 30, 2003) (BIA could reasonably have concluded that government showed by clear and convincing evidence that noncitizen had been convicted of firearms offense upon evidence of certified record of conviction, even though record contained conflicting information, and unfilled blanks).

[235] See, e.g., Matter of Pichardo-Sufren, 21 I. & N. Dec. 330 (BIA 1996) (citing regulation as listing documents acceptable to prove nature of conviction).

[236] Rosales-Pineda v. Gonzales, 452 F.3d 627 (7th Cir. Jun. 19, 2006).

[237] See also United States. v. Martinez-Jimenez, 464 F.3d 1205 (9th Cir. Sept. 29, 2006) (NCIC report is sufficiently reliable to be used to establish existence of criminal conviction, for purposes of increasing criminal history category for criminal sentence, at least where no evidence of inaccuracy of such reports has been presented); accord, United States v. Urbina-Mejia, 450 F.3d 838 (8th Cir. 2006). 

[238] See § 24.29, infra.