A police report is not part of the record of conviction.[358]  The United States Supreme Court, in fact, reversed the First Circuit on this issue.[359]  The Ninth Circuit has suggested that police reports may not be used even if the noncitizen defendant has stipulated that the police reports reflects the factual basis for the plea.[360]

 

Because of their inherent unreliability, police reports have generally been excluded from evidence at criminal trials.[361]  The rule’s legislative history indicates that: “the reason for this exclusion is that the observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between police and the defendant in criminal cases.”  Reports of “law enforcement personnel” included in Federal Rule of Evidence 803(8) are generally regarded as unreliable if prepared in an adversarial setting.[362]  The Ninth Circuit has likewise excluded a report prepared by an INS inspector during the interrogation of a noncitizen at the border, where the suspicion was alien smuggling and the setting adversarial and investigatorial in nature.[363]

 

                Police reports also may not be used to determine whether a noncitizen is eligible for relief as a matter of discretion,[364] or to prove the existence of a conviction.[365]  One area in which it appears that a police report may be considered is when a federal court is determining a sentence for a noncitizen convicted of illegal re-entry.[366]

A police report, or probable cause statement based on a police report, cannot be used to prove a conviction.  It is not part of the record of conviction.  See § 16.31, infra.[367]  Police reports may also not be used to determine whether a noncitizen is eligible for relief as a matter of discretion,[368] or to prove the existence of a conviction.[369]

 

An affidavit of the arresting officer, considered part of the conviction record under New York law, was held relevant in determining the nature of conviction.[370]  This decision, however, must be considered an aberration, since these documents contain disputable facts, and do not establish elements of the offense.

 

Additionally, in a related context, the determination of whether a state conviction constituted an aggravated felony, the court looked to the police reports and found that, regardless of the elements of the statute of conviction, the defendant’s conduct clearly met the federal test for sexual abuse of a minor.[371]  This is an example of an unpopular offense resulting in a court violating customary rules of law, and should not be followed.

 

Our review of the administrative record has revealed that the immigration judge considered as “adverse factors” two police reports that implicated petitioner in criminal activity. Petitioner was never prosecuted for these alleged crimes, apparently because the prosecuting authorities decided that they had insufficient evidence to prosecute. In our view, these police reports were not probative of anything and should not have been considered as “adverse factors.” Cf. Rassano v. INS, 7 Cir., 1974, 492 F.2d 220. We are quite concerned about the consideration of and reliance on these police reports by the immigration judge and would be tempted to remand for reconsideration were this a closer case.  But since the other evidence revealed, as the immigration judge observed, a “rather lengthy, involved and complicated involvement with law,” and since the petitioner has failed to raise the point on review, we do not think that the consideration of these reports warrants our reversing the Board’s decision. The scope of our review of the Board’s decisions on whether to grant discretionary relief is quite limited. See United States ex rel. Hintopolous v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652; Carrasco-Favela v. INS, 5 Cir., 1977, 563 F.2d 1220, 1222.[372]

[358] United States v. Vasquez-Garcia, 449 F.3d 870 (8th Cir. Jun. 9, 2006) (police reports could not be used to determine whether offense was an aggravated felony firearms offense; defendant wanted police reports submitted to rebut charging document to which he entered a plea to possession of a sawed off shotgun); United States v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. Jan. 19, 2006); United States v. Martinez-Hernandez, 422 F.3d 1084 (10th Cir. Sept. 2, 2005) (California conviction for possession of a weapon, in violation of Penal Code § 12020(a)(1), cannot be considered a “firearms offense” where the record of conviction did not specify the weapon, even though the police report indicated that the weapon involved was a sawed-off shotgun); United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (police reports inadmissible as part of record of conviction, even if they fall within business or official records exception to hearsay rule, citing Federal Rule of Evidence 803(8)(B)); Sierra-Reyes v. INS, 585 F.2d 762 (5th Cir. 1978) (although immigration judge acted improperly in considering police reports implicating noncitizen in criminal activity as “adverse factors” bearing on discretionary relief from deportation, reversal was not required in view of other evidence of record); Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996) (“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.  Therefore, the police report should not have been considered to determine whether the specific offense of which the respondent was convicted constitutes a firearms violation.”).  Cf. United States v. Allen, 282 F.3d 339 (5th Cir. 2002) (district court improperly relied on police report to determine whether prior conviction was a “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii)).  But see Matter of PC, 8 I. & N. Dec. 670 (BIA 1960) (in narcotics case, affidavit of arresting officer and laboratory report considered part of conviction record under New York law were relevant in determining nature of the crime).

[359] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (Mar. 7, 2005) (a court sentencing a defendant under the Armed Career Criminal Act may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary), overruling United States v. Harris, 964 F.2d 1234 (1st Cir. 1994), and reversing United States v. Shepard, 231 F.3d 56 (1st Cir. 2000).  An immigration case, Emile v. INS, 244 F.3d 183 (1st Cir. 2001), relying upon the reasoning of the overruled cases, should also be considered implicitly overruled.

[360] United States v. Almazan-Becerra, 456 F.3d 949, 954-955 (9th Cir. Aug. 1, 2006) (police reports stipulated as factual basis for plea are not the functional equivalent of either a plea agreement or plea colloquy).  See § 16.24, supra.

[361] F. R. Evid. 803(8)(B) reads: “(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”  See also advisory note to Rule 803(8)(B).

[362] United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979).  See also United States v. Orellana-Blanco, 294 F.3d 1143 (9th Cir. June 26, 2002) (holding inadmissible as a violation of the Confrontation Clause a police summary of an interview with the defendant, which fell within the criminal case exclusion to the hearsay exception for public records, and was not an admission made by defendant or adopted by him).

[363] United States v. Pena-Gutierrez, 222 F.3d 1080 (9th Cir. 2000).

[364] Matter of Arreguin, 21 I. & N. Dec. 38 (BIA 1995); but see Henry v. INS, 74 F.3d 1, 5-7 (1st Cir. 1997); Matter of Grijalva, 19 I. & N. Dec. 713 (BIA 1988).

[365] Matter of Teixeira, 21 I. & N. Dec. 316, 319 (BIA 1996).  See also INA § 240(c)(3)(B), 8 U.S.C. § 1229a(c)(3)(B); 8 C.F.R. § 1003.41.

[366] United States v. Londono-Quintero, 289 F.3d 147 (1st Cir. May 6, 2002).

[367] United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (police reports inadmissible as part of record of conviction, even if they fall within business or official records exception to hearsay rule, citing Federal Rule of Evidence 803(8)(B)); Sierra-Reyes v. INS, 585 F.2d 762 (5th Cir. 1978) (although immigration judge acted improperly in considering police reports implicating alien in criminal activity as “adverse factors” bearing on discretionary relief from deportation, reversal was not required in view of other evidence of record); Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996).  “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.  Therefore, the police report should not have been considered to determine whether the specific offense of which the respondent was convicted constitutes a firearms violation.”).  Cf. Shepard v. United States, 125 S.Ct. 1254 (Mar. 7, 2005) (police reports are not part of the record of conviction for purposes of the Armed Career Criminal Act); United States v. Allen, 282 F.3d 339 (5th Cir. 2002) (district court improperly relied on police report to determine whether prior conviction was a “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii)).

[368] Matter of Arreguin, 21 I. & N. Dec. 38 (BIA 1995); but see Henry v. INS, 74 F.3d 1, 5-7 (1st Cir. 1997); Matter of Grijalva, 19 I. & N. Dec. 713 (BIA 1988).

[369] Matter of Teixeira, 21 I. & N. Dec. 316, 319 (BIA 1996).  See also INA § 240(c)(3)(B), 8 U.S.C. § 1229a(c)(3)(B); 8 C.F.R. § 1003.41.

[370]  Matter of PC, 8 I. & N. Dec. 670 (BIA 1960) (in narcotics case, affidavit of arresting officer and laboratory report considered part of conviction record under New York law were relevant in determining nature of the crime).

[371] Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (analyzing Mass. Gen. Laws ch. 265 § 13B).

[372] Sierra-Reyes v. INS, 585 F.2d 762, 764 n.3 (5th Cir. 1978).

BIA

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - MODIFIED CATEGORICAL ANALYSIS - RECORD OF CONVICTION - POLICE REPORTS - FACTUAL BASIS
Matter of Milian-Dubon, 25 I. & N. Dec. 197 (BIA Feb. 19, 2010) (California conviction of spousal battery, in violation of Penal Code 243(e)(1), constitutes a conviction of domestic violence, triggering deportability under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), because: "In applying the modified categorical approach to assess an aliens conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings."). Note: This decision is deeply flawed in its application of the categorical analysis, and the question of whether a police report should be included in the record of conviction should never have been reached. California Penal Code 243(e)(1) punishes battery committed against certain persons. For purposes of this statute, battery is simply "any willful and unlawful use of force or violence upon the person of another." This definition is not a divisible statute. The California courts have found that the term "force or violence" is a term of art (much like "aggravated felony"): As used in the foregoing, the words "force" and "violence" are synonymous and mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act. The slightest [unlawful] touching, if done in an insolent, rude, or an angry manner, is sufficient. It is not necessary that the touching be done in actual anger or with actual malice; it is sufficient if it was unwarranted and unjustifiable. The touching essential to a battery may be a touching of the person, of the person's clothing, or of something attached to or closely connected with the person. CALIFORNIA JURY INSTRUCTIONS--CRIMINAL 16.141 (2006). Thus, there was no divisible statute analysis to be had, and the immigration court should never have even bothered to examine the record of conviction. Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989) ("Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted."). Rather, the decision should have applied the minimum conduct analysis to find that a conviction of violating Penal Code 237(e)(1) cannot be a crime of violence since the "full range of conduct" punishable under the statute does not necessarily involve use of force. United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) ("[t]he crime defined by [California Penal Code 261.5(c)] qualifies as sexual abuse of a minor and hence an aggravated felony if and only if the full range of conduct covered by it falls within the meaning of that term.") (internal quotations and citation omitted).

Third Circuit

CONVICTION " NATURE OF CONVICTION " RECORD OF CONVICTION " POLICE OFFICERS WRITTEN STATEMENT
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (police officers' written statements are therefore not part of the record of conviction that may be consulted as part of the modified categorical analysis).

Fifth Circuit

CONVICTION - NATURE OF CONVICTION - RECORD OF CONVICTION - POLICE REPORT
United States v. Gutierrez-Hernandez, __F.3d __ (5th Cir. Aug. 28, 2009) (police report could not be examined to determine if prior conviction involved sale of cocaine).

Ninth Circuit

RECORD OF CONVICTION - FACTUAL BASIS - POLICE REPORTS
United States v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. Aug. 12, 2008) (California conviction for violation of Penal Code 11360(a) was properly found to be a drug trafficking offense for illegal re-entry purposes where police reports indicated that defendant had sold marijuana, and defendant agreed at the plea hearing that the police reports provided the factual basis for the plea). NOTE: This issue was not raised or discussed in prior decision, United States v. Almazan-Becerra, 482 F.3d 1085, 1090 (9th Cir.2007).

RECORD OF CONVICTION - POLICE REPORTS - COURT MAY CONSIDER POLICE REPORTS IN MODIFIED CATEGORICAL ANALYSIS WHERE DEFENDANT AGREES COURT MAY REVIEW POLICE REPORTS TO ASCERTAIN FACTUAL BASIS FOR PLEA
Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (noncitizen's "decision to incorporate the police report into his guilty plea made the report "an explicit statement in which the factual basis for the plea was confirmed by the defendant." Thus, in this circumstance, "relying upon the [police report] to establish the elements of the crime" of conviction "does not undermine the purposes of our limited modified categorical inquiry."), citing Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005)(police reports may be considered "if specifically incorporated into the guilty plea or admitted by a defendant.").