Crimes of Moral Turpitude

 

(D)

Other Documents Excluded.  Additional documents the courts have found not to be part of the record of conviction include:

 

            (1) Charges Against Others.  Charges against others are irrelevant.[1]

 

                        (2)  Clerk’s Certificates.  A certificate of the clerk of court also may be excluded from the conviction record.[2]

 

                        (3)  Codefendant’s Record of Conviction.  The record of conviction of a noncitizen does not include the record of conviction of the person’s codefendant.[3]

                        (4)  Conditions of Probation or Parole.  The fact that a defendant was ordered by a sentencing court to participate in drug treatment, domestic violence counseling, etc. cannot be used to determine the nature of the conviction.[4]

 

                        (5)  Criminal History Reports.  Criminal history reports, or “rap sheets,” should not be relied upon as proof of facts or considered to be part of the record of conviction, since they were not prepared as part of the original criminal case nor by the court rendering the criminal conviction.[5]

 

                        (6)  Facts Assumed for Criminal Appeal.  The Ninth Circuit has found that facts assumed to be true by a criminal court of appeals for the purpose of deciding the sufficiency of an evidentiary issue cannot constitute an “admission” for immigration purposes, because for that purpose the facts are presumed true, without any actual admission by the defendant.[6]

 

                        (7)  Foreign Pardons.  The fact that a foreign jurisdiction granted a pardon may not be considered in determining whether a conviction is for an offense that involves moral turpitude, since the pardon is not part of the record of conviction.[7]

 

                        (8)  Plea to a Lesser Offense.  If the defendant pleaded guilty 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.[8]  

 

            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. [9]

 

Arguably this decision has been overruled by Shepard.[10]

 

                        (9)  Recidivist Sentence Enhancements.  Whether a sentence imposed on account of a sentence enhancement is considered as forming part of the sentence, or altering the nature of the conviction itself is discussed in N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 10.57-10.58, 19.58 (4th Ed. 2007).[203]

                        (10)  Statements of Criminal Judge.  The opinion of the judge in the criminal case on whether the conviction involves moral turpitude is irrelevant.[12]

 

                        (11)  Statements in Plea Negotiations.  In many states, statements made by a defendant in the course of plea negotiations should not be included in the record of conviction, since such statements are not admissible as evidence for any purpose.[13]

 

                        (12)  Statements of Prosecutor.  The record of conviction does not include the prosecutor’s statements at the time of sentence.[14]

 

                        (13)  Statements of Respondent or Witnesses in Immigration Court.

Admissions made by a respondent in immigration court are not part of the record of conviction, and may not be considered in determining whether a conviction exists,[204] or falls within a deportable category of convictions.[16]  The testimony of other witnesses presented during immigration proceedings likewise is not part of the record of the conviction in criminal court.[17]  While testimony in immigration court may not be considered in divisible statute analysis, courts have held that it may be examined in determining the existence of a conviction.[18]

 

The Ninth Circuit has also held that statements by the defendant, made in the course of prosecution for illegal re-entry, regarding the facts underlying a prior conviction, cannot be used when applying the divisible statute analysis.[19]

 

(14)    Subsequent Offenses.  The fact that a defendant was later convicted of serious offenses should not alter the nature of an earlier conviction.[20]

 

[205] See Cabral v. INS, 15 F.3d 193, 196-197 (1st Cir. 1994) (assuming, arguendo, the immigration court may consider only those facts alleged in the charge to which the defendant pleaded guilty).

[206] United States v. Snellenberger, 493 F.3d 1015 (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); Dashto v. INS, 59 F.3d 697, 701-702 (7th Cir. 1995) (reversing deportation order based on certificate of clerk of court as to criminal record); but see Wadman v. INS, 329 F.2d 812 (9th Cir. 1964) (receiving stolen goods).

[207] Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (record of conviction of respondent, who aided and abetted her husband, does not include the conviction record of the husband where her record of conviction nowhere related her crime of aiding and abetting to the specific sexual offense of which her husband was convicted, the respondent’s prior conviction for engaging in deviate sexual intercourse with a 3-year-old female was overturned on appeal, and the statute under which she was subsequently convicted specifically excluded felonies under 18 U.S.C., Chapter 109A (18 U.S.C. § § 2241-45 (Supp. IV 1986)), which concerns sexual abuse offenses).

[208] See, e.g., Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. Jun. 26, 2006) (court could not use fact that noncitizen was ordered to participate in domestic violence counseling to find that simple battery conviction was a crime of domestic violence).

[209] Cf. United States v. Cox, 536 F.2d 65, 69 (5th Cir. 1976) (rap sheet disclosing defendant’s arrest for the very charges for which she was being tried should not have been admitted into evidence in criminal trial).

[210] Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (defendant did not admit truth of facts stated in criminal court of appeals decision, deciding question of sufficiency of evidence to sustain conviction, for purposes of inclusion in record of conviction to determine nature of conviction for immigration purposes, because admission was for limited criminal purposes only, and not in a way that is binding for the purposes of conviction and subsequent proceedings or for all future purposes; “No factual findings are actually made, and no admissions are entered into by the defendant. Instead, for the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. It was from this isolated context that the IJ drew the facts and circumstances of Morales’s conviction. This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003). Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the State’s evidence for the purpose of her challenge to its sufficiency.”).

[211] Vidal y Planas v. Landon, 104 F.Supp. 384 (S.D.Cal. 1952).

[212] 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).

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

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

[215] Cf. 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).").

[216] Soetarto v. INS, 516 F.2d 778 (7th Cir. 1975) (doubt expressed by concurring judge); Fitzgerald ex rel. Miceli v. Landon, 238 F.2d 864, 867 (1st Cir. 1956); Matter of Pataki, 15 I. & N. Dec. 324, 326 (BIA 1975) (affidavit of sentencing judge not considered part of record); Matter of Goodalle, 12 I. & N. Dec. 106, 107-108 (BIA 1967) (opinion of the criminal judge on the question of moral turpitude is outside the record of conviction, and irrelevant).  Cf. United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (sentencing judge’s statement in transcript that he read and considered the probation report not sufficient to bring probation report within record of conviction, for purposes of assessing the elements of the offense of conviction to determine whether it constituted a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) for purposes of imposing a 16-level increase in the base offense level of an illegal re-entry sentence).

[217] E.g., California Evid. Code, § 1153 (statement made by defendant during plea negotiations should not have been admitted at trial as a confession, since a criminal defendant’s offer to plead guilty is inadmissible in any action or in any proceeding of any nature); People v. Magana,17 Cal.App.4th 1371, 1376 (1993).)

[218] See Matter of Cassisi, 10 I. & N. Dec. 136 (BIA 1963) (statements of state’s attorney at sentencing cannot be used to establish that the conviction involved moral turpitude).

[219] Garcia-Lopez v. Ashcroft, 334 F.3d 840 n.4 (9th Cir. June 26, 2003) (respondent's representative cannot in proceedings concede a conviction that is not a conviction: "The INS also contends that Garcia-Lopez "admitted" that he was convicted of a felony because, in support of the initial application, Garcia-Lopez's accredited representative stated that Garcia-Lopez had received a felony sentence. As an initial matter, the representative's statement was patently inaccurate, as Garcia-Lopez was never actually sentenced. More importantly, Garcia-Lopez's belief about the nature of his offense is irrelevant to the purely legal question of how the offense was categorized or what the maximum penalty was. Similarly, the statement of Garcia-Lopez's representative as to a matter of law has no legal effect. See Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980). The INS's contention that Garcia-Lopez is bound by this statement must fail.").

[220] Sandoval-Lua v. Gonzales, 499 F.3d 1121 n.7, (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”); Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (respondent’s testimony during removal proceedings is not part of record of conviction, for purposes of determining whether conviction constitutes aggravated felony for removal purposes); Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 n.4 (9th Cir. June 26, 2003) (statement by respondent’s accredited representative that respondent had been convicted of a felony offense has no legal effect, and is not a binding “admission” to having committed such offense; respondent’s subjective belief about the nature of his offense is irrelevant to the purely legal questions of the category of offense or the maximum penalty); Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (concession before the immigration court does not obviate the right to challenge or obtain a ruling on whether a conviction constitutes an aggravated felony when it is a pure matter of law on which the appellate court can rule); United States ex rel. Mylius v. Uhl, 210 Fed. 860 (2d Cir. 1914); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534 (E.D. Pa. 1947); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996) (firearms offense); Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974); Matter of S, 5 I. & N. Dec. 576 (BIA 1953) (respondent’s testimony in deportation proceedings does cast some light on the nature of the acts he is alleged to have committed, but the immigration court is precluded from going outside the record of conviction to consider such testimony).

[221] Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Immigration Judge improperly  considered the testimony of the victim as to the nature of her relationship with the noncitizen in concluding that the crime of violence constituted a “crime of domestic violence” for deportation purposes).

[222] See § 7.7, supra.

[203] United States v. Nobriga, 408 F.3d 1178, 1182 n.4 (9th Cir. May 20, 2005) (per curiam) superseded by 474 F.3d 561 (9th Cir. 2006) (“Such a post hoc admission is not pertinent to Taylor’s modified categorical approach. The statement at issue did not come in the plea colloquy for the offense of conviction, which generally is judicially noticeable under Taylor and Shepard. See, e .g., United States v. Smith, 390 F.3d 661 (9th Cir. 2004), as amended, 405 F.3d 726 (9th Cir. Apr.27, 2005). Rather, Nobriga’s statement about the former offense was made in the district court in this case. Such a statement is not judicially noticeable under Taylor and Shepard.”).

[204] United States ex rel. Ciarello v. Reimer, 32 F.Supp. 797 (D.N.Y. 1940) (Italian conviction of assault and battery by 16-year-old with stone resulting in injury held not CMT, despite convictions of murder 15 years later and carnal abuse 32 years later).