Criminal Defense of Immigrants

The “record of conviction” includes the charge, which may be contained in a complaint,[298] information, or indictment.[299]  Only the charge of which the defendant is convicted is included in the record of conviction. 

[298] In some cases a “complaint” arguably may not be acceptable, since in some states the complaint is created by the police department, not the district attorney’s office, and is not sufficient, in itself, to initiate criminal proceedings.  See Garcia v. U.S. Att’y Gen., 462 F.3d 287, (3d Cir. Sept. 5, 2006) (finding complaint filed under Pennsylvania law sufficient).

[299] Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (indictment report is part of record of conviction, for purposes of determining whether conviction constitutes aggravated felony for removal purposes); Matter of Truong, 22 I. & N. Dec. 1090 (BIA 1999) (information is included in record of conviction); Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587, 588 (BIA 1992) (including an information in “record of conviction”); Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933); Matter of C, 5 I. & N. Dec. 65, 71 (BIA 1953).  Cf. United States v. Allen, 282 F.3d 339, 342-343 (5th Cir. 2002) (courts may consider charging papers and jury instructions to determine whether a prior offense qualifies as a “serious drug offense” for purposes of 18 U.S.C.A § 924(e)(2)(A) [Armed Career Criminal Act]).