Crimes of Moral Turpitude

 

(B)

Existence v. Nature.  The documents that make up the record of conviction for determining the nature of the offense of conviction (i.e., elements to which a noncitizen entered a plea of guilty) are not the same as the documents that may be considered by the immigration authorities in establishing the mere existence of a conviction.[1]  While cases have determined which documents make up the “record of conviction,”[2] the documents that may be presented to prove the fact of conviction are listed under the Immigration and Nationality Act and regulations.[3]  The two lists are not the same.[4]  The documents required to demonstrate the fact of conviction, for example, do not explicitly include charging documents.  A presentence report may be examined to determine the fact of conviction, but not the nature of the conviction.[5]  The regulations also have a catch-all provision describing documents that may be considered in determining the existence of a conviction that does not apply to the “record of conviction” for divisible statute analysis.[6]  Generally, the courts will accept a broader range of evidence to establish the existence of a conviction, including admissions made by the noncitizen in immigration court,[7] than they are allowed to consult to determine the elements of the conviction to determine whether it triggers a ground of removal.[67]  However, the range of acceptance is not unlimited.[9]  Even when the immigration authorities present such documentation, the documents may still be challenged as insufficient.[10]

 

Courts are sometimes confused by the distinction between the existence versus the nature of a conviction.[11]  In Singh v. USDHS,[68] the Second Circuit found that the conditions of probation, a certificate of disposition and a rap sheet could all be considered to determine the divisible statute analysis question of under which of multiple subdivisions of a New York assault statute a noncitizen defendant was convicted, for the purpose of determining whether the conviction was a crime of moral turpitude, citing INA § 240(c)(3)(B), 8 U.S.C. § 1129a(c)(3)(B) (“Proof of Convictions”).  The court (erroneously) relied heavily upon a case where the issue was proof of conviction, rather than the nature of the conviction.[69]  The court also stated that it was proper to examine the Conditions of Probation form because it was a “[a]n official record of . . . sentence,” apparently forgetting that the sentence imposed does not speak to question of whether an offense is a crime of moral turpitude.[70]

 

The Seventh Circuit held the immigration courts need not be limited to the record of conviction in evaluating whether a conviction constitutes a CMT.[71]  It also found (in light of its abandonment of Taylor and Shepard in the immigration context) that the number of documents that may be examined to prove the nature of a conviction is greater than those that may be used to proved the existence of a conviction.  While examination of a pre-sentence report is insufficient to prove the existence of a conviction, the Seventh Circuit held it may be examined in considering whether a conviction offense is a CMT.[16]

[72] See United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. Oct. 12, 2007) (Taylor and Shepard analysis limiting record of conviction does not apply to the issue of proving the existence of the conviction, only the nature of the conviction); United States v. Snellenberger, 493 F.3d 1015, 1020 n.5, (9th Cir. Jul. 10, 2007) (while an abstract of judgment or minute order cannot be used to establish the nature of a conviction, those documents can be used to establish the existence of a conviction; court distinguished between evidentiary law treating abstract of judgment and minute orders as accurate in the absence of contrary evidence and the question of meeting government's burden in demonstrating nature of conviction), amending 480 F.3d 1187 (9th Cir. 2007); Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (documents listed at 8 C.F.R. § 1003.41 are used to determine existence of conviction, not to determine under categorical analysis whether conviction triggers ground of removal; pre-sentence investigation is not part of the record of conviction for purposes of determining nature of conviction, only its existence); Matter of Teixiera, 21 I. & N. Dec. 316, 319 (holding that a police report does not belong on either list: “The only document introduced into evidence that we consider to be part of the respondent’s “record of conviction,” or that fits any of the regulatory descriptions found at 8 C.F.R. § 1003.41 for documents that are admissible as evidence in any proceeding before an Immigration Judge in proving a criminal conviction, is the record of plea, verdict, and sentence. See 8 C.F.R. § § 1003.41(a)(2), (5), (6). 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.”).

[73] See § § 7.10-7.12, infra.

[74] INA § 240(c)(3)(B), 8 U.S.C. § 1129a(c)(3)(B); 8 C.F.R. § 1003.41.

[75] Note that in implementing the final regulation listing documents admissible as proof on conviction, the title of the rule was changed from “Record of Conviction” to “Evidence of Criminal Conviction” to more accurately reflect the content of the rule.  Att’y Gen. Order No. 1764-93, Executive Office for Immigration Review; Criminal Conviction Records, 58 Fed.Reg. 38952, 38953 (July 21, 1993).

[76] Compare United States v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. June 9, 2003) (government’s burden of proving existence of aggravated felony to enhance illegal re-entry sentence by clear and convincing evidence was satisfied by presentence report listing crime of conviction plus noncitizen’s admission in application for benefits filed with the INS to having committed voluntary manslaughter), with Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (statement concerning underlying facts of offense recounted in the PSR does not determine that these facts are those to which the defendant pleaded guilty; it is not what the person did but the crime of conviction that is decisive for immigration purposes).  See also United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003) (presentence report that failed to identify the exact statute of conviction is legally insufficient to establish that a state conviction fell within the crime of violence definition of U.S.S.G. § 2L1.2 (2001) for purposes of sustaining a 16-level sentence enhancement for illegal re-entry).

[77] 8 C.F.R. § 1003.41(d).

[78] Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. Sept. 28, 2004) (en banc), cert. denied, 125 S.Ct. 2245 (2005) (ambiguous court record held sufficient to establish that respondent had been convicted of a firearms offense, and was thus not eligible for a waiver of deportability under INA § 212(c), 8 U.S.C. § 1182(c)); Fequiere v INS, 279 F.3d 1325 (11th Cir. Jan. 25, 2002) (the forms of evidence listed in INA § 240, 8 U.S.C. § 1229a are not exclusive, and respondent’s admission under oath of conviction constituted clear and convincing evidence in removal hearing, when the government submitted no documentary evidence such as a conviction record from the sentencing court). 

[79] See, e.g., Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb. 29, 2008) ("In addition, we have held that the list of documents enumerated in § 1229a(c)(3)(B) is non-exhaustive and thus does not prohibit the admission of other types of documents if they are sufficiently “probative” of the kind of conviction at issue."), citing Dulal-Whiteway v. U.S. Dep't of Homeland Sec., 501 F .3d 116, 132 (2d Cir. 2007) (holding that while a restitution order may “offer proof that a conviction exists,” an IJ may not rely on it “to establish that the underlying facts of that conviction constitute a removable offense”); Francis v. Gonzales, 442 F.3d 131, 142-43 (2d Cir. Mar. 27, 2006) (holding that while applicable regulations allow an IJ to consider a police “rap sheet” referring to a specific conviction, an IJ may not deem such a report conclusive proof of conviction of a removable offense as rap sheets “lack the necessary information to describe the full record of conviction and do not necessarily emanate from a neutral, reliable source”); see also Dickson v. Ashcroft, 346 F.3d 44, 53-55 (2d Cir. Sept. 9, 2003) (holding that an IJ may not rely upon the “narrative statements of facts” section of an alien's pre-sentence report to determine whether the alien had been convicted of a removable offense).

[80] See, e.g., Francis v. Gonzalez, 442 F.3d 131 (2d Cir. Mar. 27, 2006) (Jamaican rap sheet contained in police report was, by itself, insufficient to demonstrate the existence of a “conviction” for immigration purposes, since the document by itself did not show adjudication of guilt; commentary to 8 C.F.R. § 1003.41(d) suggests rap sheets admissible but not conclusive).

[81] See, e.g., Francis v. Gonzales, 442 F.3d 131, 142-143 (2d Cir. Mar. 27, 2006); Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. Sept. 28, 2004) (en banc), vacating and withdrawing previous opinions, 358 F.3d 828 (11th Cir. Jan. 29, 2004), and 335 F.3d 1269 (11th Cir. June 30, 2003) (BIA could reasonably have concluded that government showed by clear and convincing evidence that noncitizen had been convicted of firearms offense upon evidence of certified record of conviction, even though record contained conflicting information, and unfilled blanks).

[82] See, e.g., Matter of Pichardo-Sufren, 21 I. & N. Dec. 330 (BIA 1996) (citing regulation as listing documents acceptable to prove nature of conviction).

[67] Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) (New York conviction for violation of New York Penal Code § 120.5(1) is a crime of moral turpitude).

[68] Id. at 645 ("However, Francis also held that an IJ may admit a rap sheet as partial evidence of such a conviction."), citing Francis v. Gonzales, 442 F.3d 131, 142-43 (2d Cir. 2006) (Jamaican police “rap sheet” was insufficient evidence that noncitizen had been “convicted” of a drug offense; concluding that 8 U.S.C. § 1229a(c)(3)(B) provides which documents “constitute conclusive proof of conviction” but does not prohibit the admission of a rap sheet as “some evidence of a criminal conviction”).

[69] Id. at 644.  See § 8.12, infra.

[70] See § 6.2(A), supra.

[71] Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008).