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