(H)  Plea to a Lesser Offense.  If the defendant pleaded guilty plea to a lesser crime than that charged in the indictment, the immigration court will assess moral turpitude on the basis of the lesser crime to which the guilty plea was entered, rather than the original charge.[386]

 

Unfortunately, a recent BIA decision seems to state the contrary:

 

In this case, we find that section 125.20 of the New York Penal Law is a divisible statute . . . .  Therefore, without referring to the conviction record, we are unable to determine whether the respondent was convicted of a removable offense. Although the conviction record does not specify the subsection under which the respondent was convicted, it does indicate that he was initially charged with murder in the second degree under section 125.25(1)of the New York Penal Law, because “with intent to cause the death of [his victim, he] caused [her] death . . . by stabbing her with a sharp instrument.” Based on our examination of the record of conviction, we conclude that the respondent was convicted under either subsection 1 or 2 of section 125.20, which define lesser included offenses to the crime of second-degree murder. [387]

 

Arguably this decision has been overruled by Shepard.[388]

[386] United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003) (refusing to consider charging document in order to determine whether prior conviction was a crime of violence under U.S.S.G. §   4B1.2(a)(2), since defendant had pleaded guilty to a lesser offense; “a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted.”), quoting United States v. Spell, 44 F.3d 936, 940 (11th Cir. 1995); Valenti v. Karmuth, 1 F.Supp. 370 (N.D.N.Y. 1932); Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975); Matter of M, 5 I. & N. Dec. 642 (BIA 1954); Matter of K, 4 I. & N. Dec. 490 (BIA 1951); Matter of VT, 2 I. & N. Dec. 213, 214-15 (BIA 1944).  “He was convicted of first degree manslaughter, a lesser included offense. Therefore, we must disregard those allegations contained in the indictment which are pertinent only to the greater crime but not to the lesser.  Matter of Beato, 10 I. & N. Dec. 730, 732-3, 735 (S.I.O.; BIA 1964). See Matter of W, 4 I. & N. Dec. 241, 245 (BIA 1951).” Matter of Ghunaim, 15 I. & N. Dec. 269, 271 (BIA 1975).

[387] Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651, 654-655 (BIA 2004).

[388] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (Mar. 7, 2005).

BIA

RECORD OF CONVICTION - NO CONTACT ORDER - FAILURE TO CONSTITUTE CLEAR AND CONVINCING EVIDENCE OF NATURE OF CONVICTION WHERE NO CONTACT ORDER MAY BE BASED ON PREPONDERANCE OF THE EVIDENCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington no contact order, contained in criminal case file, identifying the victim's date of birth, did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. . . . [A]lthough a "no-contact order" must bear a relationship to an offender's convicted offense, no direct causal link need be established between such an order and the crime committed. State v. Warren, 138 P.3d 1081, 1094 (Wash. Ct. App. 2006) (citing State v. Llamas-Villa, 836 P.2d 239 (Wash. Ct. App. 1992)). Thus, a no-contact order may be issued in Washington on the basis of facts that were not necessarily admitted by the defendant or proven beyond a reasonable doubt in order to establish the defendant's guilt with respect to the underlying crime.").

RECORD OF CONVICTION - ELEMENT OF OFFENSE - SENTENCE ENHANCEMENT - SENTENCE FACTOR LAWFULLY FOUND BY A PREPONDERANCE OF THE EVIDENCE DOES NOT CONSTITUTE AN ELEMENT OF THE OFFENSE UNDER APPRENDI
The impact of Matter of Martinez-Zapata, 24 I. & N. Dec. 424 (BIA 2007), holding certain sentence enhancements to be equivalent to elements of the offense for purposes of determining the nature of the offense for immigration purposes, does not apply where a sentence enhancement has been found true by a mere preponderance of the evidence, whether it be found by a court or jury. This is because Apprendi v. New Jersey, 530 U.S. 466 (2000), on which Martinez-Zapata is based, held that a sentencing court's finding by a preponderance of the evidence of the truth of a sentence enhancement that increased maximum penalty of offense was unconstitutional in violation of the jury trial guarantee of the United States Constitution because it constituted an element of the offense under that provision.

   This offers a number of favorable arguments counsel can use to argue that a given sentence enhancement does not constitute an element of the offense for purposes of determining the nature of the offense under immigration law. The BIA itself recognized important limitations on its decision.

   Importantly, we point out that Apprendi and its progeny do not encompass all sentence enhancements; the Apprendi analysis will not result in all sentence enhancements being the equivalent of "elements" of an offense. Rather, those post-Apprendi enhancements that may still permissibly be found by a preponderance of the evidence by a sentencing judge, including those under the United States Sentencing Guidelines and many State sentencing schemes, will not be the equivalent of an "element" of an offense. See, e.g., Cunningham v. California, 127 S. Ct. 856 (2007); Blakely v. Washington, supra; Ring v. Arizona, 536 U.S. 584 (2002). It is crucial that an examination of the specific statutory sentencing scheme be conducted in order to make the determination. To equate to an element it must be shown that, under the law of the convicting jurisdiction, a sentencing factor had to be proved to a jury beyond a reasonable doubt if it was not admitted by the defendant.

Martinez-Zapata, supra, at 430. In particular, a number of limitations and arguments emerge from this decision:

   (1) Martinez-Zapata cannot retroactively convert a sentence enhancement found by a mere preponderance into an element of the offense. Many sentence enhancements imposed prior to June 26, 2000, the date on which Apprendi was decided, were imposed after a sentencing judge found the sentence enhancement true by a preponderance of the evidence. These sentence enhancements cannot constitute elements of the offense under Martinez-Zapata, because it was not in fact admitted by the defendant or found true beyond a reasonable doubt by a jury. Martinez-Zapata expressly states that its rule (like its rationale) applies only with respect to "any post-Apprendi sentencing factor that is shown to have been found in accordance with the criminal law protections of a jury trial and burden of proof afforded a defendant in relation to the elements of an offense." Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.5 (BIA 2007). "The holding in Matter of Rodriguez-Cortes also continues to apply in pre-Apprendi sentencing determinations." Matter of Martinez-Zapata, supra, at 429 (BIA 2007).

   (2) Even after Apprendi, it took some time before courts implemented that decision, so it is important to verify that the sentence enhancement in the case under consideration was in fact admitted by the defendant or found true beyond a reasonable doubt by a jury. If not, the sentence enhancement does not in fact constitute an element of the offense. Even today, because of the ongoing confusion in this area, many courts are not in fact implementing Apprendi correctly. The courts' learning process is sometimes slow.

   (3) Be alert for instances in which the sentence enhancement was found by a preponderance, rather than beyond a reasonable doubt. In jury cases, check the jury instructions relating to the sentence enhancement to verify the burden of proof was in fact beyond a reasonable doubt. The BIA has cautioned that the inquiry in these cases is very much dependent on the exact mechanics of the statutes in the jurisdiction of conviction:

However, not all facts bearing on sentencing are required to be found beyond a reasonable doubt as a result of Apprendi and Blakely. In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court made determinations under the United States Sentencing Guidelines advisory, thereby allowing such findings to continue to be made solely by Federal judges under a preponderance of the evidence standard. Further, the States have responded in various ways to Apprendi and Blakely, such that a careful understanding of specific State law is needed to determine whether a particular sentencing factor, if not admitted during the criminal proceedings, would be required to be found beyond a reasonable doubt by a jury.

Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 428-429 (BIA 2007) [footnote omitted].

   (4) Following Apprendi, Martinez-Zapata applies only to sentence enhancements that increase the maximum possible statutory penalty for the offense. Therefore, sentence enhancements are not equivalent to elements of the offense, for immigration purposes, if they do not increase the maximum statutory penalty for the conviction, but merely increase the actual sentence ordered for the conviction within a fixed statutory maximum, as is the case under the United States Sentencing Guidelines and similar state sentence frameworks.

   (5) Martinez-Zapata does not apply where a sentence enhancement does not increase the statutory maximum for the offense, but merely the statutory minimum. See Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.4 (BIA 2007) ("Compare section 481.134(c) of the Texas Health and Safety Code, which is not subject to Apprendi in accordance with Harris v. United States, 536 U.S. 545 (2002), because it merely increases the statutory minimum sentence but does not exceed the statutory maximum sentence. See Williams v. State, 127 S.W.3d 442, 445 (Tex. App. 2004) (finding that section 481.134(c) does not create a separate offense because its only effect is to raise the penalty when an enumerated offense is committed in a designated place); see also Uribe v. State, 573 S.W.2d 819 (Tex. Crim. App. 1978).").

   (6) The federal constitutional guarantee of the right to a jury trial does not apply to misdemeanors carrying a maximum sentence of six months or less. Therefore, in such misdemeanor cases, there is no constitutional right to have a jury finding of the true of many sentence enhancements. This gives rise to an argument that Martinez-Zapata does not convert such sentence enhancement findings into elements of the offense for immigration purposes. See Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 428 n.2 (BIA 2007) ("Apprendi v. New Jersey, supra, and its progeny focus on admissions by the defendant or findings by a jury beyond a reasonable doubt. Offenses carrying maximum sentences of 6 months or less, however, are not required to be tried before a jury. See Lewis v. United States, 518 U.S. 322 (1996).") The BIA, however, has expressly left this question open. Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 430 n.6 (BIA 2007) ("We have no occasion here to decide whether we would treat as an element any such factor required by the convicting jurisdiction to be proved beyond a reasonable doubt to a court rather than a jury."), citing Harris v. United States, 536 U.S. 545 (2002), and Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004).

   (7) The sentence enhancement in Martinez-Zapata converted a Class B misdemeanor, in violation of Texas Health & Safety Code 481.121(b)(1) to a Class A misdemeanor, in violation of Texas Health & Safety Code 481.134(f)(1). Martinez-Zapata, supra, at 425. This can fairly be said to affect the "conviction" directly, since the defendant under this statute is now "convicted" of a Class A misdemeanor, rather than a Class B misdemeanor. On the other hand, a sentence enhancement that merely alters the maximum possible sentence for a conviction cannot be said to affect the conviction in the same way. Counsel can argue that this difference should lead to a distinction, but the chances of a court adopting this distinction seem limited.

   (8) Martinez-Zapata expressly applies only with respect to "any post-Apprendi sentencing factor that is shown to have been found in accordance with the criminal law protections of a jury trial and burden of proof afforded a defendant in relation to the elements of an offense." Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 (BIA 2007). Therefore, counsel for respondent can argue that a given sentence enhancement was imposed in violation of due process, or another fundamental federal constitutional right, such as the Apprendi right to jury trial, and therefore does not under the facts of this case constitute an element of the offense of conviction. Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.5 (BIA 2007).

RECORD OF CONVICTION - SENTENCE ENHANCEMENT - ELEMENTS
Matter of Martinez-Zapata, 24 I. & N. Dec. 424 (BIA 2007) (any fact, including a fact contained in a sentence enhancement, that serves to increase the maximum penalty for a crime and that is required to be found by a jury beyond a reasonable doubt if not admitted by the defendant, is to be treated as an element of the underlying offense; a conviction involving the application of such an enhancement is a conviction for the enhanced offense), superseding Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA 1992), in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). http://www.usdoj.gov/eoir/vll/intdec/vol24/3594.pdf

RECORD OF CONVICTION - SENTENCE ENHANCEMENT - ELEMENTS - OPEN QUESTION WHETHER SENTENCE ENHANCEMENT EQUALS AN ELEMENT FOR PURPOSES OF DETERMINING THE NATURE OF THE CONVICTION UNDER IMMIGRATION LAW WHERE THE CONVICTING JURISDICTION REQUIRES IT BE PROVEN BEYOND A REASONABLE DOUBT TO A COURT RATHER THAN A JURY
Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 430 n.6 (BIA 2007) ("We have no occasion here to decide whether we would treat as an element any such factor required by the convicting jurisdiction to be proved beyond a reasonable doubt to a court rather than a jury."), citing Harris v. United States, 536 U.S. 545 (2002), and Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004).

RECORD OF CONVICTION - MINUTE ORDER
Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. Jan. 25, 2010), withdrawing and superseding opinion previously published at 553 F.3d 1266 (9th Cir. Jan. 27, 2009).

NOTE: This decision withdraws a prior finding that a notation in an abstract or minute order could be used to identify the elements of the offense. This restores prior Ninth Circuit precedent. See, e.g., United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc). See ILRC practice advisory by Kathy Brady at: http://www.ilrc.org/immigration_law/pdf/Anaya_amended_practice%20advisory%201.27.pdf

First Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " RECORDS OF APPEALS COURT DECISION
James v. Holder, 698 F.3d 24, *28 (1st Cir. Oct. 19, 2012) (Whether Shepard's reference to the records of the convicting court, 544 U.S. at 23, excludes records of an appeals court decision in the same case is an unresolved question. A Ninth Circuit decision may have thought that it did, Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir.2007), but Morales relied on BIA precedents and the BIA subsequently said Morales misread those precedents. See In re N"A"M", 24 I. & N. Dec. 336, 344 (B.I.A .2007).).

Third Circuit

RECORD OF CONVICTION - SENTENCING FACTS INSUFFICIENT
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) ("Further, we may not look to factual assertions in the judgment of sentence. Facts a judge considers in making a discretionary sentencing determination are not necessarily admitted by the defendant. Cf., Commonwealth v. Lane, 941 A.2d 34, 38 (2008). Accordingly, factual assertions contained only in a judgment of sentence may not be considered under the modified categorical approach."; "The judgment of sentence also was not an appropriate basis for determining the amount of marijuana involved in Evanson's offense for a related reason. 8 U.S.C. 1229a(c)(3)(A) requires that the Government prove removability by clear and convincing evidence. The amount recited in the judgment of sentence was not itself necessarily based on clear and convincing evidence.")

Fourth Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " RESPONDENTS EVIDENCE DURING REMOVAL PROCEEDINGS
Mondragon v. Holder, 706 F.3d 535 (4th Cir. Jan. 31, 2013) (respondents sworn evidence concerning the offense conduct did not constitute part of the record of conviction on the basis of which the immigration authorities determine whether his Virginia conviction for assault and battery, in violation of Virginia Code 18.2"57, constituted an aggravated felony crime of violence for immigration purposes). NOTE: This case demonstrates the problems with placing the burden on a respondent in removal proceedings seeking relief where the record of conviction is inconclusive. The statute in this case makes punishable anyone who commits assault and battery or simple assault. The court found that Mondragon could not present facts to show the offense did not involve the use of violent force. The Court arguably erred here when applying the categorical and modified categorical analysis; although the court was arguably correct that the Virgina statute contained more than one set of elements, the court did not address the minimum conduct analysis, i.e., that the minimum conduct necessary to convict under either set of elements was insufficient to constitute an aggravated felony crime of violence.

REMOVAL PROCEEDING " BURDEN OF PROOF " RELIEF
Mondragon v. Holder, 706 F.3d 535 (4th Cir. Jan. 31, 2013) (respondents sworn evidence concerning the offense conduct did not constitute part of the record of conviction on the basis of which the immigration authorities determine whether his Virginia conviction for assault and battery, in violation of Virginia Code 18.2"57, constituted an aggravated felony crime of violence for immigration purposes). NOTE: This case demonstrates the problems with placing the burden on a respondent in removal proceedings seeking relief where the record of conviction is inconclusive. The statute in this case makes punishable anyone who commits assault and battery or simple assault. The court found that Mondragon could not present facts to show the offense did not involve the use of violent force. The Court arguably erred here when applying the categorical and modified categorical analysis; although the court was arguably correct that the Virgina statute contained more than one set of elements, the court did not address the minimum conduct analysis, i.e., that the minimum conduct necessary to convict under either set of elements was insufficient to constitute an aggravated felony crime of violence.

Sixth Circuit

RECORD OF CONVICTION - PRELIMINARY HEARING TRANSCRIPT
United States v. Medina-Almaguer, 559 F.3d 420 (6th Cir. Mar. 12, 2009) ("Even granting for the sake of argument that a sentencing court may consult a preliminary-examination transcript in investigating the nature of a prior offense, this transcript does not show that Medina-Almaguer "necessarily admitted" to a "drug trafficking offense" when he pleaded guilty to violating 11352(a). Much like a police report or a complaint application-upon which sentencing courts may not rely in determining the nature of a prior conviction, see Shepard, 544 U.S. at 16-a preliminary examination deals with a gateway step in the criminal process: determining whether probable cause exists for detaining a suspect before a potential indictment or information. . . . [T]hat testimony showed only that the examining magistrate properly concluded that there was "sufficient cause" to believe that Medina-Almaguer violated 11352(a). Medina-Almaguer did not admit that conduct during the examination, nor so far as the record shows did he admit that conduct when he pleaded guilty.").

NATURE OF OFFENSE - RECORD OF CONVICTION - AFFIDAVITS OF COMPLAINT
United States v. Jones, 453 F.3d 777, 780 (6th Cir. 2006) (sentencing court may rely on affidavits of complaint containing statements of fact "only" for "the limited inquiry of whether prior offenses constitute a single criminal episode or multiple episodes" for purposes of determining whether prior offenses qualify as "convictions [for crimes] ... committed on occasions different from one another" under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1)); accord, United States v. Wells, 473 F.3d 640, 647 n. 5 (6th Cir.2007).

Seventh Circuit

DIVISIBLE STATUTE ANALYSIS - RECORD OF CONVICTION - DOCUMENTS EXCLUDED - APPELLATE COURT DECISION
Sharashidze v. Gonzales, ___ F.3d ___, 2007 WL 777666 (7th Cir. March 16, 2007) ("Because we agree with the BIA that the complaint provided sufficient evidence that Sharashidze targeted a minor, we need not address whether the INA's definition of "record of conviction" encompasses appellate court decisions.").

Eighth Circuit

RECORD OF CONVICTION - EXCLUDED DOCUMENTS - TESTIMONY
United States v. Reyes-Solano, 543 F.3d 474 (8th Cir. Sept. 26, 2008) (Mississippi convictions for domestic assault and assault on a police officer were not categorically "crimes of violence" (defined as including twelve enumerated offenses (none at issue in this case), "or any other federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another."), so as to justify a four-level sentence enhancement under USSG 2L1.2(b)(1)(E) for illegal reentry after deportation, because "Absent state court records identifying the offense of conviction, from which the elements of that offense may be determined, the testimony of Reyes-Solano at sentencing is not sufficient proof that actual, attempted, or threatened use of force was an element of the offense and not merely conduct incidental to an offense whose essential elements did not include the use of force. Accordingly, on this record the four-level increase under 2L1.2(b)(1)(E) was improperly imposed.")

Ninth Circuit

CONVICTION " RECORD OF CONVICTION " FACTUAL BASIS - AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Marcia-Acosta, ___ F.3d ___ (9th Cir. Mar. 24, 2015) (Arizona conviction of aggravated assault, in violation of Arizona Revised Statutes 13-1203 and 13-1204, was not a "crime of violence" for illegal re-entry sentencing purposes; district court erred in relying solely upon a statement by defense counsel during plea colloquy in determining elements to which the defendant entered his plea, since a sentencing court may not rely on an extraneous factual-basis statement details, standing alone, to supply the narrowing for purposes of the modified categorical approach).

CONVICTION " NATURE OF CONVICTION " RECORD OF CONVICTION "TESTIMONY BEFORE IMMIGRATION JUDGE
Cervantes v. Holder, ___ F.3d ___, ___, 2014 WL 6463031 (9th Cir. Nov. 19, 2014) (an alien's description of his crimes is not an acceptable source of evidence under the modified categorical approach.); see Sandoval"Lua v. Gonzales, 499 F.3d 1121, 1129 n. 7 (9th Cir. 2007) ([U]nder the modified categorical approach we may not consider ... testimony about the alien's criminal conduct.), abrogated on other grounds by Young v. Holder, 697 F.3d 976, 979 (9th Cir.2012) (en banc).

CONVICTION " NATURE OF CONVICTION " RECORD OF CONVICTION " RESPONDENTS TESTIMONY IN REMOVAL PROCEEDINGS
Pagayon v. Holder, ___ F.3d ___, 2011 WL 6091276 (9th Cir. Dec. 8, 2011) (per curiam), granting rehearing, withdrawing previous opinion, 642 F.3d 1226 (9th Cir.2011), and denying rehearing en banc ("Pagayons admission of the allegation that his drug offense involved methamphetamine was a pleading stage admission. By contrast, his admission that he was convicted of the crimes charged in the information offered by the government was an evidentiary stage admission. Under Perez-Mejia, the IJ could properly consider the former, but not the latter, in determining whether Pagayon was removable, because it is testimony made during the fact-finding evidentiary stage.). http://www.ca9.uscourts.gov/datastore/opinions/2011/12/08/07-74047.pdf

CONVICTION " RECORD OF CONVICTION " ADMISSIONS BY RESOPONDENT
Perez-Mejia v. Holder, ___ F.3d ___, ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011) (When the modified categorical approach must be employed, an alien's factual admissions may not be used as evidence to establish that he is removable, unless those admissions are included in the narrow, specified set of documents that are part of the record of conviction, such as a plea agreement.); see S"Yong v. Holder, 600 F.3d 1028, 1035"36 (9th Cir.2010); Tokatly v. Ashcroft, 371 F.3d 613, 623"24 (9th Cir.2004); Huerta"Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003).

CATEGORICAL ANALYSIS " RECORD OF CONVICTION " ADMISSIONS IN PROCEEDINGS
Pagayon v. Holder, 642 F.3d 1226 (9th Cir. Jun. 24, 2011) (per curiam) (removal order was properly based, in part, on admissions petitioner made before the immigration judge: Pagayon's admission was needed only to confirm that the conviction was for the charged crime. . . . An IJ may consider an alien's admissions regarding removability if they are corroborated by the narrow, specified set of documents that are part of the record of conviction, Tokatly, 371 F.3d at 620. Absent some claim of mistake, duress or the like"which Pagayon does not raise"an admission is just as reliable as an explicit reference to the charging document in an abstract of judgment. And since an admission like Pagayon's does no more than establish that the conviction at issue was for the crime charged, it does not invite the IJ to improperly relitigate the criminal case by inquiring into the underlying facts of the crime.). NOTE: In this case, the information indicated that the respondent was charged with possession of meth, but the abstract of judgment did not specify a controlled substance. The respondent's admission was only that he pleaded guilty as charged in the information. Therefore, he did not admit to any facts that were not already in the record of conviction.

RECORD OF CONVICTION " FACTS VS. ELEMENTS " ADMISSIONS OF RESPONDENT DURING PROCEEDINGS
Perez-Mejia v. Holder, ___ F.3d ___, 2011 WL 1496990 (9th Cir. Apr. 21, 2011) (California conviction of possession of cocaine for sale, in violation of Health and Safety Code 11351, is not necessarily a controlled substances offense for purposes of triggering inadmissibility where the record of conviction is silent on the substance involved; admission of the respondent in the course of proceedings is insufficient to establish inadmissibility, since the admission is not part of the accepted record of conviction).

NATURE OF CONVICTION - RECORD OF CONVICTION - TESTIMONY OF RESPONDENT AT REMOVAL HEARING
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) ("the petitioner's testimony that he thought the substance was heroin does not alter the record of conviction.").

NATURE OF OFFENSE - RECORD OF CONVICTION - NONCITIZEN'S CONCESSION IN IMMIGRATION COURT DOES NOT CONSTITUTE PART OF RECORD OF CONVICTION
Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir. May 22, 2008) ("The Government does not argue, nor could it, that the IJ's reliance on Mandujano-Real's concession would suffice as a basis for removal if the BIA or the court were to determine that his conviction does not, as a matter of law, constitute an aggravated felony."), following Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 n.4 (9th Cir. 2003) (explaining that an alien's "belief about the nature of his offense is irrelevant to the purely legal question of how the offense was categorized.... The INS's contention that [the alien] is bound by [his counsel's admission] must fail"); see also Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003) (rejecting Government's argument that "Huerta waived her ability to challenge deportability before the BIA by conceding that she was removable").

RECORD OF CONVICTION - ADMISSIONS OF NONCITIZEN IN IMMIGRATION PROCEEDINGS DO NOT CONSTITUTE PART OF RECORD OF CONVICTION
Villarreal-Rodriguez v. Mukasey, ___ F.3d ___, 2008 WL 1776994 (9th Cir. Apr. 17, 2008) ("[T]he record of conviction and Villarreal's admissions before the IJ do not support use of the convictions as bases for removal.").

RECORD OF CONVICTION - DOCUMENTS EXCLUDED - TESTIMONY OF NONCITIZEN IN REMOVAL PROCEEDINGS DOES NOT CONSTITUTE PART OF THE RECORD OF CONVICTION AND MAY NOT BE CONSIDERED IN DETERMINING NATURE OF OFFENSE
Sandoval-Lua v. Gonzales, ___ F.3d ___, ___ n.7, 2007 WL 2421427 (9th Cir. Aug. 28, 2007) ("The BIA improperly considered Lua's testimony before the IJ in concluding that Lua had not demonstrated his eligibility for cancellation of removal. The certified administrative record contains Lua's admission before the IJ that his 11379(a) conviction was for delivering eight ounces of methamphetamine from a friend to another person in exchange for $450. This conduct falls within 8 U.S.C. 1101(a)(43)(B)'s definition of aggravated felony, as it is not solicitation or possession for personal use. However, under the modified categorical approach we may not consider this testimony. Pursuant to Shepard, our inquiry is limited to the judicially noticeable documents listed above."), citing Cisneros-Perez v. Gonzales, 465 F.3d 386, 393 (9th Cir. 2006) (explaining that in applying the modified categorical analysis, the IJ may not look to the administrative record in removal proceedings because "[t]he IJ was not entitled to go beyond the conviction record for purposes of ascertaining the crime of which [the petitioner] was convicted").

RECORD OF CONVICTION - DOCUMENTS EXCLUDED - MINUTE ORDER
United States v. Snellenberger, __ F.3d __ 2007 WL 1977098 (9th Cir. Jul. 10, 2007) (in the context of criminal sentencing, a minute order is "not a judicial record that can be relied upon" to establish the nature of a prior conviction), amending 480 F.3d 1187 (9th Cir. 2007).

NATURE OF OFFENSE - ELEMENTS OF OFFENSE - SENTENCE ENHANCEMENTS - RECIDIVIST ENHANCEMENTS
United States v. Grisel, 488 F.3d 844 (9th Cir. Jun. 5, 2007) (en banc) (prior convictions are not elements of offense, and need not be pleaded or found beyond reasonable doubt by jury, to impose a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1): "The Court likewise preserved the exception for prior convictions in Blakely v. Washington, 542 U.S. 296, 301 (2004); United States v. Booker, 543 U.S. 220, 244 (2005); Cunningham v. California, 127 S.Ct. 856, 864, 868 (2007); and, most recently, James v. United States, 127 S.Ct. 1586, 1600 n. 8 (2007).").