quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
controlling the information in these documents, counsel may be able to define the conviction to
avoid the worst immigration consequences, while still pleading under a statute acceptable to the
prosecution.
As discussed in Part B.1, supra, in some cases it is enough for counsel to keep the
reviewable record of conviction vague, but in other cases not. Where the issue is whether a
conviction will make a permanent resident deportable, it is sufficient to keep the reviewable
record of conviction vague as to the offense of conviction. Where the issue is eligibility for
relief, until the law is clarified counsel should attempt to plead specifically to an offense with
fewer immigration consequences (although if that is not possible, counsel at least should keep
the record vague).
2. Sources of information that may be used under the modified categorical approach.
The Supreme Court has stated that under this approach, the reviewable record in a
conviction by plea is limited to
the statutory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented. 61
There is a controversy in the case law as to what constitutes proof that the defendant
admitted all of the elements in the charging document. See Part D, infra. Also, counsel must
assume that if a document is stipulated to as containing a factual basis for the plea, the
immigration judge may consider the contents of the document. See Part E, infra, on how to
construct a safer factual basis for the plea.
Where the conviction was by jury, the Supreme Court has held that the complaint, jury
instructions, and verdict can be used to the extent that they clearly establish that the defendant
was convicted of an offense containing the elements of the generic definition (here, of the
immigration provisions). See Taylor v. United States, 495 U.S. 575, 602 (1990).
3. Sources of information that may not be used under the modified categorical
approach.
In immigration proceedings, the group of documents that the immigration judge is
permitted to review often is referred to as “the reviewable record of conviction.” The following
documents are not part of the reviewable record.
‣ Prosecutor’s remarks during the hearing,
‣ Police reports, probation or “pre-sentence” reports, unless defense counsel stipulates that
they provide a factual basis for the plea.
61 Shepard v. United States, 125 S.Ct. 1254, 1257 (2005).
Immigrant Legal Resource Center N-43