Tooby's California Post-Conviction Relief for Immigrants

 

(F)

Evidence.[122]  Because immigration courts are not criminal courts, Article III courts under the judiciary, or even subject to the Administrative Procedures Act, [123] the rules of evidence are much less developed.[124]  “Any oral or written statement which is material and relevant to any issue in the case previously made by the respondent or any other person during any investigation, examination, hearing or trial” may be submitted.[125]  Any hearsay evidence is admissible if it is probative and its admission would not be fundamentally unfair.[126] 

 

Although a respondent may be charged with a ground of inadmissibility, the DHS must provide access to the respondent’s “visa or other entry document, if any, and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the [respondent’s] admission or presence in the United States.”[127] 

 

“No decision on deportability shall be valid unless it is based upon reasonable, substantial and probative evidence.”[128]  In proving the existence[129] of a criminal conviction the DHS may submit any of the following (original or certified) documents:

 

·        Official record of judgment and conviction;

·        Official record of plea, verdict, and sentence;

·        Docket entry from court records indicating the existence of a conviction;

·        Official minutes of court proceedings or a transcript of a court hearing in which the court takes notice of the existence of the conviction;

·        An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a state official associated with the state’s repository of criminal justice records, that indicates the charge or the section of the law violated, the disposition of the case, the existence and date of conviction, and the sentence;

·        Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of the conviction; or

·        Any document or record attesting to the conviction that is maintained by an official of a state or federal penal institution, which is the basis for that institution’s authority to assume custody of the individual named in the record.[130]

 

The regulations[131] include a similar list, but also state that “any other evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof.”[132]  Whether the nature of the conviction triggers a ground of removal must be determined by examination of the record of conviction, which includes some, but not all, of the documents used to prove the existence of a conviction.[133]

[122] For more information see Ira J. Kurzban, Immigration Law Sourcebook, 291-299 (10th ed. 2006).

[123] See Criminal Defense of Immigrants § 15.10.

[124] See Hassan v. Gonzalez, 403 F.3d 429, 435 (6th Cir. 2005).

[125] 8 C.F.R. § 1240.7(a).  See also Matter of Wadud, 19 I. & N. Dec. 182 (BIA 1984).

[126] See, e.g., Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003) (allowing hearsay evidence); Renteria v. INA, 322 F.3d 804 (5th Cir. 2002) (allowing hearsay evidence); Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003) (double and triple hearsay not admissible); Murphy v. INS, 54 F.3d 605 (9th Cir. 1995) (double hearsay not sufficient to meet government burden).

[127] INA § 240(c)(2), 8 U.S.C. § 1229(c)(2).

[128] INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

[129] As opposed to the nature of the conviction for purposes of determining whether a given conviction falls within a ground of removal.  See Criminal Defense of Immigrants § 16.16.

[130] INA § 240(c)(3)(B), 8 U.S.C. § 1229a(c)(3)(B).  This may include certified electronic records.  INA § 240(c)(3)(C), 8 U.S.C. § 1229(c)(3)(C).

[131] 8 C.F.R. § 1003.41.

[132] 8 C.F.R. § 1003.41(d).

[133] See § 3.6; Criminal Defense of Immigrants § § 16.15-16.33.