Safe Havens

(A)  Existence vs. Nature of Conviction.  Conviction-based grounds of deportation are preferred by the immigration authorities because of ease of proof.  In general, a certified court document is sufficient to establish the existence of the conviction.[17] If the record of conviction, as shown by another list of official documents, see Chapter 4, infra, establishes the nature of the conviction, and the nature of the conviction falls within the boundaries of any of the conviction-based grounds of deportation, the noncitizen is deportable.

The documents that make up the record of conviction for determining the elements to which a noncitizen entered a plea of guilty are not the same as the documents that may be considered by the immigration authorities in establishing the mere existence of a conviction.[18]  While cases have determined which documents make up the “record of conviction,” the documents that may be presented to prove the fact of conviction are listed under the Act and regulations.[19]  The documents required to demonstrate the fact of conviction, for example, do not explicitly include charging documents.  A presentence report may be examined to determine the fact of conviction, but not the nature of the conviction.[20]  The regulations also have a catch-all provision that does not apply to the “record of conviction” for divisible-statute analysis.[21]  Generally, the courts will accept a broader range of evidence to establish the existence of a conviction, including admissions made by the noncitizen in immigration court, than to establish the nature of a conviction.[22]

[17] The documents that may be presented to prove the fact of conviction are listed under the Act and regulations.  INA § 240(c)(3)(B), 8 U.S.C. § 1129a(c)(3)(B); 8 C.F.R. § 1003.41.

[18] See Matter of Teixiera, 21 I. & N. Dec. 316, 319 (holding that a police report does not belong on either list: “The only document introduced into evidence that we consider to be part of the respondent’s “record of conviction,” or that fits any of the regulatory descriptions found at 8 C.F.R. § 1003.41 for documents that are admissible as evidence in any proceeding before an Immigration Judge in proving a criminal conviction, is the record of plea, verdict, and sentence. See 8 C.F.R. § § 1003.41(a)(2), (5), (6). The police report is not part of a “record of conviction,” nor does it fit any of the regulatory descriptions. Cf. 8 C.F.R. § 1003.41.”).

[19] INA § 240(c)(3)(B), 8 U.S.C. § 1129a(c)(3)(B); 8 C.F.R. § 1003.41.

[20] Compare United States v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. June 9, 2003) (government’s burden of proving existence of aggravated felony to enhance illegal re-entry sentence by clear and convincing evidence was satisfied by presentence report listing crime of conviction plus noncitizen’s admission in application for benefits filed with the INS to having committed voluntary manslaughter), with Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. March 4, 2003) (statement concerning underlying facts of offense recounted in the PSR does not determine that these facts are those to which the defendant pleaded guilty; it is not what the person did but the crime of conviction that is decisive for immigration purposes).  See also United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. August 11, 2003) (presentence report that failed to identify the exact statute of conviction is legally insufficient to establish that a state conviction fell within the crime of violence definition of U.S.S.G. § 2L1.2 (2001) for purposes of sustaining a 16-level sentence enhancement for illegal re-entry).

[21] 8 C.F.R. § 1003.41(d).

[22] Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. September 28, 2004) (ambiguous court record held sufficient to establish that respondent had been convicted of a firearms offense, and was thus not eligible for a waiver of deportability under INA § 212(c), 8 U.S.C. 1182(c)); Fequiere v INS, 279 F.3d 1325 (11th Cir. January 25, 2002) (the forms of evidence listed in INA § 240, 8 U.S.C. § 1229a are not exclusive, and respondent’s admission under oath of conviction constituted clear and convincing evidence in removal hearing, when the government submitted no documentary evidence such as a conviction record from the sentencing court).