The principal reason the DHS and reviewing courts do not go beyond the record of conviction is administrative workability.[266]  The reasoning has been explained by the Board as follows:

 

[T]he principle of not looking behind a record of conviction provides this Board with the only workable approach in cases where deportability is premised on the existence of a conviction. If we were to allow evidence that is not part of the record of conviction as proof of whether an alien falls within the reach of section 241(a)(2)(C) of the Act, we essentially would be inviting the parties to present any and all evidence bearing on an alien’s conduct leading to the conviction, including possibly the arresting officer’s testimony or even the testimony of eyewitnesses who may have been at the scene of the crime.  Such an endeavor is inconsistent both with the streamlined adjudication that a deportation hearing is intended to provide and with the settled proposition that an Immigration Judge cannot adjudicate guilt or innocence. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984). If we were to make an exception here and accept the respondent’s testimony as proof of his deportability under section 241(a)(2)(C) of the Act, there would be no clear stopping point where this Board could limit the scope of seemingly dispositive but extrinsic evidence bearing on the respondent’s deportability. We believe that the harm to the system induced by the consideration of such extrinsic evidence far outweighs the beneficial effect of allowing it to form the evidentiary basis of a finding of deportability. See generally Cabral v. INS, supra; Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993); United States ex rel. Zaffarano v. Corsi, supra; United States ex rel. Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931).[267]

 

The United States Supreme Court, in the context of a sentencing case, described the judicial chaos that could result if the courts were able to look to the facts underlying the conviction:

 

In all cases where the Government alleges that the defendant’s actual conduct would fit the generic definition of burglary, the trial court would have to determine what the conduct was.  In some case, the indictment or other charging paper might reveal the theory or theories of the case presented to the jury.  In other cases, however, only the Government’s actual proof at trial would indicate whether the defendant’s conduct constituted generic burglary.  Would the Government be permitted to introduce the trial transcript before the sentencing court, or if no transcript is available, present the testimony of witnesses?  Could the defense present witnesses of its own and argue that the jury might have returned a verdict on some theory that did not require a finding that the defendant committed generic burglary?  If the sentencing court were to conclude, from its own review of the record, that the defendant actually committed a generic burglary, could the defendant challenge this conclusion as abridging his right to jury trial?  Also, in cases where the defendant pleaded guilty, there is often no record of the underlying facts.  Even if the Government were able to prove those facts, if a guilty plea to a lesser, nonburglary offense was the result of the plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary.[268]             

 

Thus, more than a desire for judicial economy underlies the basis for not looking to the facts underlying a conviction.

[266] Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980)(“such collateral attacks . . . could not reasonably provide a fair forum for ascertaining the truth of the assertion.  The proceeding would be conducted in a different court, and a different country, geographically and temporally far removed from the locus of the crime”); Castle v. INS, 541 F.2d 1064, 1066 n.5 (4th Cir. 1976) (Congress did not intend that the INS or courts undertake the challenging task of relitigating the facts of the offense of conviction); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. denied, 405 U.S. 997, 92 S.Ct. 1260 (1972); Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929); Zgodda v. Holland, 184 F.Supp. 847 (E.D. Pa. 1960); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of Santoro, 11 I. & N. Dec. 607, 608 (BIA 1966) (it has “long ago been settled . . . that the immigration authorities may not go behind the record of conviction to examine the circumstances under which the crime was committed, and the determination of whether the crime involves moral turpitude must be made on the basis of the statutory definition of the crime and the record of conviction” [citations omitted]; conviction of mayhem by biting wife constituted crime involving moral turpitude).  Cf. Matter of T, 2 I. & N. Dec. 22 (AG 1944).

[267] Matter of Pichardo, 21 I. & N. Dec. 330, 335-336 (BIA 1996).  See also Michel v. INS, 206 F.3d 253, 264, 265 (2d Cir. 2000); Cabral v. INS, 15 F.3d 193, 196 n.6 (1st Cir. 1994); Lennon v. INS, 527 F.2d 187, 194 n.16 (2d Cir. 1975); Pino v. Nicolls, 215 F.2d 237, 245 (1st Cir. 1954), rev’d on other grounds sub nom. Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576 (1955) (per curiam); Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999) (applying same rationale to aggravated felonies).

[268] Taylor v. United States, 495 U.S. 575, 601 (1990).

BIA

NATURE OF CONVICTION - RATIONALE FOR IGNORING FACTS
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 393 n.8 (BIA Dec. 13, 2007) (en banc) ("Aliens in removal proceedings have no constitutional right to appointed counsel, so allowing facts about recidivism to be determined by an Immigration Judge in the first instance could raise due process concerns. Chewning v. Cunningham, 368 U.S. 443, 447 (1962) (finding that due process requires the appointment of counsel to a defendant charged as an habitual offender under Virginia law in light of the complexity of the recidivism issue).").

Second Circuit

NATURE OF A CONVICTION - DIVISIBLE STATUTE - BIA AS FACTFINDER
Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) ("We have held that the BIA cannot adjudicate the facts in a criminal case to determine whether, standing alone, they suggest that the petitioner committed a removable offense. See Sui v. INS, 250 F.3d 105, 119 (2d Cir.2001) (emphasizing that the BIA cannot assume the position of factfinder). Because Wala did not admit to, was not charged with, and was not required to plead to a permanent taking in order to be convicted in Connecticut of burglary in the third degree, Wala's guilty plea does not necessarily rest on facts identifying the burglary as a CIMT. See Dulal-Whiteway, 501 F.3d at 129-31. As the Supreme Court explained in Shepard, if the state statute requires no finding of the particular element at issue and there is no charging document that narrows the charge to those limits, the "only certainty [in a pleaded case] of [that] finding lies in ... the defendant's own admissions or accepted findings of fact confirming the factual basis for a valid plea." Shepard, 544 U.S. at 25. In Wala's case, the record is silent on the removability element, that is, whether he intended to commit a permanent taking. The BIA, by looking to the facts of Wala's conviction to infer such an intent, therefore transgressed the permitted scope of the modified categorical approach.").

Third Circuit

CATEGORICAL ANALYSIS - RATIONAL FOR IGNORING THE FACTS
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) ("The Courts of Appeals have transplanted that categorical approach into the INA because of obvious similarities between the two inquiries. The plain language of the INA, like 924(e), mandates that the alien was "convicted" of the prior offense designated in the INA as an "aggravated felony." It is not sufficient for the BIA to independently conclude that the alien "has committed" that prior offense. Therefore, the INA, like 924(e), requires a comparison of the prior conviction to the generic definition of the pertinent aggravated felony - in this case, 1101(a)(43)(M)(i) and (U). The rationale is not just a textual one, however. Courts have adopted categorical approaches for the INA also because the INA inquiry involves the same sorts of practical difficulties and fairness concerns underlying the Supreme Courts decisions in Taylor and Shepard. As the Second Circuit explained, "the BIA and reviewing courts are ill-suited to readjudicate the basis of prior criminal convictions." Dulal-Whiteway, 501 F.3d at 132. See also id. ("we decline the invitation to piece together an underlying attempt conviction by weighing evidence and drawing conclusions in a manner appropriate only for a criminal jury") (quoting Sui v. I.N.S., 250 F.3d 105, 119 (2nd Cir. 2001)); Shepard, 544 U.S. at 23 (a purpose of the categorical approach is the "avoidance of collateral trials"). As the Second Circuit also recognized, the categorical approach promotes basic precepts of fairness. Id. at 133 ("[I]f the guilty plea to a lesser, [non-removable] offense was the result of a plea bargain, it would seem unfair to [order removal] as if the defendant had pleaded guilty to [a removable offense]. [Taylor, 495 U.S.] at 601-02. By permitting the BIA to remove only those aliens who have actually or necessarily pleaded to the elements of a removable offense, our holding promotes the fair exercise of the removal power").")(Stapleton, J, dissenting).

Fifth Circuit

NATURE OF OFFENSE - CATEGORICAL ANALYSIS - LIMITATION TO RECORD OF CONVICTION -- RATIONALE
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) ("The purpose of the categorical approach is to avoid "the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind prior convictions .... [which] would potentially require federal courts to relitigate a defendant's prior conviction in any case where the government alleged that the defendant's actual conduct fit the definition of a predicate offense."), quoting Larin-Ullo v. Gonzales, 462 F.3d 456, 463 (5th Cir.2006), citing Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

NATURE OF OFFENSE - CATEGORICAL ANALYSIS - LIMITATION TO RECORD OF CONVICTION -- RATIONALE
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) ("The purpose of the categorical approach is to avoid "the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind prior convictions .... [which] would potentially require federal courts to relitigate a defendant's prior conviction in any case where the government alleged that the defendant's actual conduct fit the definition of a predicate offense."), quoting Larin-Ullo v. Gonzales, 462 F.3d 456, 463 (5th Cir.2006), citing Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Sixth Circuit

CATEGORICAL ANALYSIS " RATIONAL FOR IGNORING FACTS
United States v. McMurray, 653 F.3d 367 (6th Cir. Aug 4, 2011) (It makes no difference that everyone understood McMurray's plea as relating to the facts alleged by the state at the plea hearing. See Savage, 542 F.3d at 967. The Court in Shepard rejected the argument that a defendant's plea necessarily rested on particular facts because those facts are the only ones in the record underlying the charges and the defendant never explicitly disputed them. See Shepard, 544 U.S. at 19, 21"22; Medina"Almaguer, 559 F.3d at 425 (stating, in explaining Shepard, that [w]hat mattered was not how likely it was that Shepard had pleaded guilty to burglarizing buildings (or how unlikely it was that he had pleaded guilty to burglarizing ship[s], vessel[s] or vehicle[s]), but whether the government could produce evidence showing that Shepard necessarily admitted to breaking into buildings when he entered his pleas). We must consider only the facts necessarily admitted by the defendant in pleading guilty even if we are forced to feign agnosticism about clearly knowable facts. Shepard, 544 U.S. at 34"35 (O'Connor, J., dissenting).).