The court should not, under any circumstances, look beyond the record of conviction to determine whether a conviction falls within a conviction-based ground of removal.[1] “In deportation proceedings the immigration judge cannot go behind the judicial record to determine the guilt or innocence of an alien.  See Matter of Khalik, 17 I. & N. Dec. 518 (BIA 1980); Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978); Matter of Fortis, 14 I. & N. Dec. 576 (BIA 1974).”[2]  This analysis may no longer apply within the Seventh Circuit. See § 6.2(B), supra.

 

 

Judge Learned Hand described this principle:

 

Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed.  When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. Conversely, when it does, no evidence is competent that he was in fact blameless.[3] 

 

This rule applies against the immigrant as well as the government.[4]  “We note that in the context of crimes involving moral turpitude, the Government has long opposed looking outside the record of conviction to resolve questions of deportability.  See, e.g., Tillinghast v. Edwards, 31 F.2d 81, 82-84 (1st Cir. 1929); see also Castle v. INS, 541 F.2d 1064, 1066 n.5 (4th Cir. 1976).”[5]

 

It has been long acknowledged by this Court and every other circuit that has addressed the issue that crimes of theft, however they may be technically translated into domestic penal provisions, are presumed to involve moral turpitude.  Brett v. INS, 386 F.2d 439 (2d Cir. 1967), cert. denied, 392 U.S. 935, 88 S.Ct. 2304, 20 L. Ed.2d 1394 (1968); Soetarto v. INS, 516 F.2d 778 (7th Cir. 1975); Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962).  Of course, it hardly takes a flight of imagination to conceive of circumstances in which acts technically constituting this type of offense could be viewed as entirely free of such a stigma. However, an alien convicted of theft cannot demonstrate such mitigation by relitigating the merits of the case before the INS or reviewing courts.[6]

 

In Tokatly v. Ashcroft,[7] the Ninth Circuit held that Oregon convictions of First Degree Burglary and Attempted First Degree Kidnapping could not be found to be “crimes of domestic violence,” under 8 U.S.C. § 1227(a)(2)(E)(i), for deportation purposes, since the statutes of conviction did not require, as an element, proof of a domestic relationship.  The court held that the testimony of the victim of the crime, stating that she was the noncitizen’s spouse, given before the Immigration Judge during removal proceedings, was factual information coming from outside the record of conviction which could not be considered.  While Tokatly dealt with a ground of deportability, the same reasoning would apply to argue that a simple battery conviction where the crime was committed against a spouse could not be a crime involving moral turpitude[8] since the spousal relationship was not an element to be proven, but rather an underlying fact which cannot be considered.

 

Recently the BIA has attempted to create an exception to the record of conviction limitation, at least in the context of aggravated felony offenses that can be argued to require proof of an “extra element” other than that necessary to convict in order to sustain deportability.[9]  The Seven Circuit has applied this reasoning in the CMT context.[83]  

[84] Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. July 11, 2005) (“Documents and testimony that would require us to make factual determinations that were not necessarily made in the prior criminal proceeding lie outside the scope of our inquiry under the modified categorical approach.”); Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir. 2004) (“While ‘it is proper [for the Board] to look to probative evidence outside the record of conviction in inquiring as to the circumstances surrounding the commission of [a] crime in order to determine whether a favorable exercise of discretion is warranted,’ ‘the Immigration Judge and this Board may not go beyond the record of conviction to determine the guilt or innocence of the alien.’), citing Matter of Mendez-Moralez, 21 I. & N. Dec. 296, 303 n.1 (BIA 1996) (emphasis added); Rassano v. INS, 377 F.2d 971 (7th Cir. 1966); United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939); United States ex rel. Mylius v. Uhl, 210 F. 860, 862-63 (2d Cir. 1914); Zgodda v. Holland, 184 F.Supp. 847 (E.D.Pa. 1960) (the court was not free to go behind noncitizen’s convictions of simple larceny and consider circumstances in which offenses were committed, nor could the court consider the fact that convictions had been expunged from records of the noncitizen’s native country, but was required to determine the moral quality of the act upon the basis of the convictions themselves, and where noncitizen conceded that she had been convicted of simple larceny, that was a crime involving moral turpitude); Vidal y Planas v. Landon, 104 F.Supp. 384, 389 (S.D.Cal. 1952); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534, 536 (E.D.Pa. 1947); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974).

[85] Matter of Danesh, 19 I. & N. Dec. 669, 670 (BIA 1988). 

[86] United States ex rel. Robinson v. Day, 51 F.2d 1022, 1022-23 (2d Cir. 1931) (citations omitted).

[87] If this rule is to be breached, however, it would arguably violate due process to allow it to be breached only in favor of the government. E.g., Wardius v. Oregon, 412 U.S. 470 (1973); Gray v. Klauser, 282 F.3d 633, 644(9th Cir. 2002).

[88] Matter of Teixeira, 21 I. & N. Dec. 316, n.1 (BIA 1996); Matter of T, 3 I. & N. Dec. 641 (BIA 1949) (where a record of conviction is introduced in the immigration proceeding, the nature of the crime is conclusively established by the record of conviction, and this rule precludes inquiry outside the record of conviction as to facts favorable and unfavorable to the noncitizen).  See also Alleyne v. INS, 879 F.2d 1177, 1185 (3d Cir. 1989).

[89] Chiaramonte v. INS, 626 F.2d 1093 (2d Cir. June 23, 1980) (noncitizen found guilty by foreign tribunal of crime of moral turpitude may not attempt to demonstrate through collateral attack in United States courts that his actions were only undertaken in response to exceptional circumstances and that he is morally blameless, and unless record of original proceeding, including judgment, clearly reflect such extenuating circumstances, neither the INS nor the courts may consider extrinsic evidence in determining moral culpability of the offense).  See also Matter of T, 3 I. & N. Dec. 641, 642-643 (BIA 1949) (“It is true that in some cases this rule results in the deportation of an alien who has committed a petty offense that does not necessarily indicate moral obliquity and in a finding of nondeportability in some very few cases where the offense is indicative of bad character.  ‘But such results always follow the use of fixed standards and such standards are . . . necessary for the efficient administration of the immigration laws.’”), quoting U. S. ex rel. Mylius v. Uhl, 203 Fed. 152, 154 (S. D. N. Y. 1913), aff’d, 210 Fed. 860 (2d Cir. 1913).

[90] Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004).

[91] See Matter of Tran, 21 I. & N. Dec. 291 (BIA 1996) (willful infliction of corporal injury on a spouse is a crime involving moral turpitude).

[92] Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA Sept. 28, 2007) (IJ erred in failing to examine presentence report to determine whether noncitizen had been convicted of an aggravated felony fraud offense, with a loss of $10,000 or more; the loss to the victim requirement under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), is an “extra element” that may be determined (1) without application of the categorical or divisible statute analysis; and (2) by looking beyond the record of conviction to any evidence admissible in removal proceedings bearing on the loss to the victim, including testimony in immigration court); Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007).

[83] See § 6.2(B), supra.

Third Circuit

CRIMES OF MORAL TURPITUDE - SIMPLE ASSAULT ON CHILD
Jean-Louis v. Att'y Gen., __ F.3d __ (3d Cir. Oct. 6, 2009) (Pennsylvania conviction for simple assault on a child under 12, in violation of 18 Pa. Cons. Stat. 2701(b)(2), is not a crime of moral turpitude, since the offense includes, at a minimum causing reckless in jury to a child, but without knowledge of the childs age).

CATEGORICAL ANALYSIS - LIMIT TO RECORD OF CONVICTION
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) ("In Dulal-Whiteway, the Second Circuit noted that the words of the INA provision render deportable one who has been convicted of an aggravated felony, not one who has committed an aggravated felony. Id. at 132. We do not disagree with this and, much like the Court of Appeals for the First Circuit in Conteh, we endorse careful consideration of the record to determine whether it is sufficiently clear that the loss connected to the crime of conviction exceeded $10,000. As Judge Becker noted in Singh, The dissent posits that our opinion permits consideration of loss caused by "relevant conduct" rather than the conduct of conviction. This is not correct. By requiring that loss be tethered to the convicted conduct, we are excluding consideration of relevant conduct, as did the Court of Appeals for the Seventh Circuit in Knutsen and the Court of Appeals for the Eleventh Circuit in Obasohan. In fact, we use the word "relevant" only in discussing these courts opinions. Furthermore, there is no conduct in this case other than that underlying the conviction."

Fifth Circuit

NATURE OF CONVICTION " JUDICIAL SENTENCING FINDING THAT VICTIM WAS 16 YEARS OLD DOES NOT DETERMINE NATURE OF OFFENSE
Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) (Rodriguez's Adjudication of Guilt states that [t]he Sex Offender Registration Requirements ... do apply to the Defendant. The age of the victim at the time of the offense was 16 years of age. However, this statement does not indicate that the age of the victim was an element of the offense under which Rodriguez was convicted. Nor is this an explicit factual finding by the trial judge to which the defendant assented. [Footnote omitted.] Rodriguez did not plead guilty to the sexual assault of a child. [Footnote omitted.]); quoting Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. Aug. 24, 2006).

NATURE OF OFFENSE - CATEGORICAL ANALYSIS - LIMITATION TO RECORD OF CONVICTION
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) (court of appeals enforces record of conviction limitation, of categorical analysis, and holds it improper to go beyond record of conviction where the statute defining the offense of conviction does not contain disjunctive elements or divisible subsections creating multiple offenses: "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."), 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
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) (court of appeals enforces record of conviction limitation, of categorical analysis, and holds it improper to go beyond record of conviction where the statute defining the offense of conviction does not contain disjunctive elements or divisible subsections creating multiple offenses: "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."), citing Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).

RECORD OF CONVICTION - LIMITATION TO RECORD OF CONVICTION - PRESENTENCE REPORTS
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. Apr. 22, 2008) (BIA did not abuse its discretion to consider facts in presentence report to establish loss to the victim exceeded $10,000, since reason for employing "modified categorical approach" did not fully obtain when tribunal subsequently examined, for collateral purposes, the amount of loss resulting from offense; and consideration of presentence report (PSR) in determining amount of loss was not abuse of discretion where the district court accepted the PSR into the record and the defendant did not object).

Ninth Circuit

RECORD OF CONVICTION
S-Yong v. Holder, 578 F.3d 1169 (9th Cir. Aug. 25, 2009) (IJ decision reversed where record contained no criminal documentation to show that noncitizens conviction under California Health & Safety Code 11378 involved a federally listed controlled substance).

Other

NATURE OF OFFENSE - LIMITED TO RECORD OF CONVICTION
Attorney General Opinion, Opinions from Office of Legal Counsel, Vol. 31, May 17, 2007 ("A "misdemeanor crime of domestic violence" under 18 U.S.C. 922(g)(9) is limited to those offenses of which the use or attempted use of physical force or the threatened use of a deadly weapon is an element that is, a factual predicate specified by law and required to support a conviction. Where the legal definition of the crime at issue contains a disjunctive element (which requires proof of only one of multiple specified factual predicates), only one subpart of which requires the use or attempted use of physical force or the threatened use of a deadly weapon, application of the prohibition in section 922(g)(9) will turn on whether the fact finder found that the subpart meeting the "misdemeanor crime of domestic violence" definition had been proved (or whether the defendant pleaded guilty to that subpart). The answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction. Police reports cannot answer that question. The above interpretations also govern background checks by the Federal Bureau of Investigation for firearms transfers under the National Instant Background Check System, but additional materials, including police reports, may be relied upon by the NICS for certain limited purposes.")