quick reference chart and annotations for determining immigration ...
quick reference chart and annotations for determining immigration ...
quick reference chart and annotations for determining immigration ...
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
DIVISIBLE<br />
STATUTES,<br />
RECORD<br />
OF<br />
CONVIC-<br />
TION<br />
One of the most important defense strategies comes from underst<strong>and</strong>ing <strong>and</strong> controlling<br />
the official “record of conviction” that will be considered by <strong>immigration</strong> authorities. A<br />
statute is “divisible” if it criminalizes offenses that do <strong>and</strong> do not bring <strong>immigration</strong><br />
consequences. For example, ARS § 13-3102 is divisible <strong>for</strong> purposes of the firearms<br />
deportation ground because it prohibits offenses relating to firearms as well as those<br />
relating to non-firearms weapons, such as knives. As discussed in <strong>annotations</strong> to this<br />
<strong>chart</strong>, many statutes are divisible in this way. In cases other than those involving CMT’s,<br />
or aggravated felonies <strong>for</strong> fraud or operating a prostitution business, a reviewing court or<br />
<strong>immigration</strong> judge can examine only a strictly limited set of documents, often referred to<br />
as the “record of conviction” or “judicially noticeable documents,” to determine whether<br />
the offense of conviction causes <strong>immigration</strong> consequences. These documents include the<br />
charging document, but only where there is proof that the defendant pled to the count as<br />
charged; a written plea agreement; transcript of a plea colloquy; judgment; <strong>and</strong> any<br />
explicit factual finding by the trial judge to which the defendant assented. Thus, in the<br />
above example, if these documents did not conclusively establish that the weapon was a<br />
firearm, the noncitizen will not be deportable under the firearm ground. Presentence <strong>and</strong><br />
police reports are not part of the reviewable record of conviction, except in some cases<br />
where counsel stipulated that they provide a fractual basis <strong>for</strong> the offense. For this<br />
reason, counsel must be very careful in providing a factual basis. See Note: Divisible<br />
Statutes <strong>and</strong> Record of Conviction.<br />
v