Parrilla v. Gonzales, ___ F.3d ___, 2005 WL 1606506 (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, 371 F.3d at 623-24 (testimony of a crime victim); Lara-Chacon, 345 F.3d at 1153-54 (a pre-sentencing report); United States v. Melton, 344 F.3d 1021, 1029 n.4 (9th Cir.2003) (police affidavit establishing probable cause).").

The Supreme Court decision in Shepard v. United States, 544 U.S. ___, 125 S.Ct. 1254 (March 7, 2005) in effect overruled the Board's decision in Matter of Vargas, 23 I. & N. Dec. 651 (BIA 2004), in which the BIA inferred the elements of the offense of conviction from the original charge, even though the original charge was not the charge of which the defendant had ultimately been convicted. The Shepard/Taylor holdings apply to immigration cases. In Vargas, the Board had held: In this case, we find that section 125.20 of the New York Penal Law is a divisible statute . . .

United States v. Nobriga, ___ F.3d ___, ___ n.4 (9th Cir. May 20, 2005) (per curiam) (assuming, without deciding, that defendant's admission in district court that victim of prior Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), was "former girlfriend" was not admissible to establish that prior conviction fell within the definition of a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because: "Such a post hoc admission is not pertinent to Taylor's modified categorical approach.

United States v. Garza-Lopez, ___ F.3d __, 2005 WL 1178061 (5th Cir. May 19, 2005) (district court erred in relying on presentence report from prior conviction in determining whether prior conviction constituted drug trafficking aggravated felony for purposes of triggering a sentence enhancement for illegal reentry after deportation).

United States v. Gutierrez-Ramirez, ___ F.3d ___, 2005 WL 762664 (9th Cir. April 5, 2005) (illegal reentry sentence enhancement of 16-levels was reversed, on ground district court erred in relying solely on the Abstract of Judgment as establishing that California conviction of violating Health & Safety Code 11352(a) constituted an aggravated felony drug trafficking conviction, since the statute can be violated by conduct that does not fall within the aggravated felony definition), following United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).

United States v. Gutierrez-Ramirez, __ F.3d __, 2005 WL 762664 (5th Cir. April 2, 2005) (Although strict limitation to examination of statutory elements of statute of conviction is not required to determine whether an offense is a "drug trafficking offense" for sentence enhancement purposes, the courts are limited to examination of the indictment and/or jury instructions; California abstract of judgment could not be used to determine that noncitizens prior drug conviction was a "drug trafficking offense").

Shepard v. United States, __ U.S. __ (March 07, 2005) (a court sentencing under the Armed Career Criminal Act may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary).

Billeke-Tolosa v. Ashcroft, 385 F.3d 708 (6th Cir. Sept. 30, 2004) (order of removal vacated where IJ considered unproven allegations following arrest, that did not result in convictions, in denying relief as a matter of discretion; IJ acted in violation of BIA precedent decision In re Catalina Arreguin de Rodriguez, 21 I. & N. Dec. 38 (1995)).

Omari v. Gonzales, __ F.3d __, 2005 WL 1714364 (5th Cir. July 25, 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud," as recited in the statute does not mean that Omari was necessarily convicted of transferring fraudulently obtained property.

Atty General, ___ F.3d ___, 2005 WL 3454321 (11th Cir. Dec. 19, 2005) (in determining the nature of a conviction for immigration purposes, the court may look only to the record of conviction of that specific offense, and not to the record of a separate offense of which the defendant was convicted), citing Matter of Short, 20 I. &. N. Dec.