During the client interview, counsel should ascertain the states in which the client has resided as an adult and obtain information suggesting whether the client may have state, federal, or motor vehicle convictions.  A criminal history report should be obtained from each jurisdiction in which the client may have a criminal conviction with immigration consequences.  If the client has several convictions, very often the probation report from the most recent conviction contains an excellent summary of the client’s criminal history in that jurisdiction.  Federal presentence reports include comprehensive summaries of convictions in all jurisdictions.

 

            The following sections give information concerning how to obtain criminal history reports from the Federal Bureau of Investigation, see § 4.36, infra; the California Departments of Justice, see § 4.37, infra; and the DMV.  See § 4.38, infra.  Information is also given on how to correct errors in criminal histories.  See § § 12.4-12.5, infra.

Other

NATURE OF CONVICTION " RECORD OF CONVICTION " ABSTRACTS OF JUDGMENT " ARGUMENT ABSTRACTS ARE INSUFFICIENTLY RELIABLE
Abstracts of judgment cannot be relied upon in the modified categorical approach because they are insufficiently reliable non-judicial summaries of other documents. Under both Duenas-Alvarez and Shepard documents must be judicial in nature to be Shepard-type documents considered under the modified categorical approach. Judicial does not mean prepared by a judge- as Snellenberger noted they can be prepared by a clerk of court. Snellenberger, 548 F.3d at 702. But it does not follow that anything prepared by a clerk of court is thereby judicial in nature. Abstracts of judgment are one such document, that though prepared by a clerk are not judicial in nature and therefore cannot be considered in the modified categorical approach. Furthermore, abstracts of judgment are so often flawed that they fail to meet the high Shepard standard for document reliability. Abstracts of judgment are insufficiently judicial in nature to be Shepard-type documents. In Duenas-Alvarez, the Supreme Court reiterated its position from Shepard that in addition to the terms of a plea agreement, [and] the transcript of a colloquy between the judge and the defendant, [] some comparable judicial record of information about the factual basis for the plea may be considered in the modified categorical approach. Duenas-Alvarez, 549 U.S. at 187 (citing to Shepard at 26) (emphasis added). As to abstracts, this Court had already noted that, preparation of the abstract of criminal judgment in California is a clerical, not a judicial function. United States v. Navidad-Marcos, 367 F.3d 903, 909 (9th Cir. 2004). While the court in Navidad-Marcos characterized this distinction in terms of a clerical/judicial dichotomy, its analysis is undisturbed by Snellenbergers favorable characterization of documents prepared by clerks of court. See Snellenberger, 548 F.3d at 702. Indeed, in People v. Rodriguez, the California case regarding abstracts of judgment to which this Court in Navidad-Marcos was citing for that proposition, no action by a clerk of court was even at issue. People v. Rodriguez, 152 Cal.App.3d 289, 299 (Cal.2nd 1984). There the clerical/judicial distinction was being drawn with regard to a judges own actions. Id. (discussing why a judge could not use a provision permitting changes to abstracts of judgment in light of clerical errors for the purpose of substantively altering it). An abstract of judgment is then clerical and not judicial in the sense that it does not require nor immediately record the action of a judge acting in that capacity. See A.R. at 130-31 (Mr. Garcias abstract of judgment, as an example of Judicial Council form CR-290, nowhere requires the signature of a judge). For this reason, a court may not rely on an abstract of judgment to determine the nature of a prior conviction for purposes of analysis under Taylor v. United States. United States v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. 2007). As secondary sources, abstracts of judgment are insufficiently reliable for removal purposes. Abstracts of judgment have been consistently found unreliable for the purpose of identifying the nature of a conviction. California courts have frequently noted abstracts of judgment contain erroneous information and as such are not reliable. In the words of one California court, "The frequency with which records on appeal have come to us with [erroneous] abstracts of judgments indicates that trial courts would be well advised to remind their personnel that printed abstract of judgment forms must be used with caution." People v. Waters, 30 Cal.App.3d 354, 362 (Cal.3rd 1973). More recently, the Fifth Circuit went so far as to hold that considering the low level of reliability associated with abstracts of judgment in California, we are satisfied they should not be added to the list of documents Shepard authorizes . United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005). Abstracts of judgment may establish the mere fact of a conviction, or the length of a sentence. See 8 U.S.C. 1229a(c)(3)(B), United States v. Valle-Montalbo, 474 F.3d 1197, 1199 (2007); see also Sandoval-Sandoval, 487 F.3d at 1278. However, they lack sufficient judicial imprimatur and are too prone to error to satisfy Shepards rigorous standard. For a person to be deportable the government must satisfy a high burden. Since Woodby v. INS, the Government must prove removability by clear, unequivocal, and convincing evidence. Woodby v. INS, 385 U.S. 276, 286 (1966). Abstracts are simply too unreliable to be unequivocal. Thanks to Holly Cooper.