quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 ‣ Statements by the noncitizen outside of the criminal judgment (e.g., statements to police, immigration authorities or the immigration judge). ‣ Information from a criminal charge, unless there is evidence that the defendant pled to the charge ‣ Information from a dropped charge ‣ Information from a co-defendant’s case. 62 ‣ Courts have long held that a narrative description in a California Abstract of Judgment (e.g., “sale”) cannot be consulted. 63 If counsel stipulates that a document provides a factual basis for the plea, the contents may well become part of the reviewable record. See Part D, below. Reminder: The categorical approach, and this discussion, currently does not apply to questions relating to crimes involving moral turpitude. The controversial case Matter of Silva- Trevino holds that the categorical approach does not fully apply to a determination of whether an offense is a crime involving moral turpitude. Therefore, if the threat is that the offense will be classed as a CMT, a vague record of conviction is not useful, and a specific record of conviction might or might not control the case. The Ninth Circuit probably is expected to issue a decision on Silva-Trevino issues in 2010, but unless and until the Silva-Trevino holding is overruled, the suggestions in Parts C, D, and E of this section do not apply to CMT’s. See § N. 7 Crimes Involving Moral Turpitude. In addition, this discussion does not apply to the government’s proof that an offense is an aggravated felony because a victim lost more than $10,000 in a fraud offense, and in the future it might be held not to apply to proof of the domestic relationship in a deportable “crime of domestic violence.” See discussion at Part B.4, supra. 62 See, e.g., Taylor v. United States, supra; Matter of Cassissi, 120 I&N Dec. 136 (BIA 1963) (statement of state attorney at sentencing is not included); Matter of Y, 1 I&N Dec. 137 (BIA 1941) (report of a probation officer is not included); Abreu-Reyes v. INS, 350 F.3d 966 (9 th Cir. 2003) withdrawing and reversing 292 F.3d 1029 (9 th Cir. 2002) to reaffirm that probation report is not part of the record of conviction for this purpose; Tokatly v. Ashcroft, 371 F.3d 613, 620 (9 th Cir. 2004) (testimony to immigration judge not included); Matter of Pichardo, Int. Dec. 3275 (BIA 1996)(admission by respondent in immigration court is not included); Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007), Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005) (dropped charge); United States v. Vidal, 426 F.3d 1011 (9th Cir. 2005) (proof pled to complaint “as charged”); Matter of Short, Int. Dec. 3215 (BIA 1989) (where a wife was convicted of assault with intent to commit “any felony,” the immigration authorities could not look to her husband’s record of conviction to define the felony). 63 United States v. Navidad-Marco, 367 F.3d 903 (9 th Cir. 2004). A recent Ninth Circuit opinion mistakenly contradicted this holding, but then was amended to withdraw that section. SeeAnaya-Ortiz v. Holder__ F.3d __ (9 th Cir. January 25, 2010), amending Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9 th Cir. 2009). N-44 Immigrant Legal Resource Center
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