In determining whether a conviction fits within the definition of an immigration category, such as a crime of moral turpitude, or crime of violence, the Board of Immigration Appeals  will follow the federal courts and make a “categorical analysis,” i.e., it will look to the statutory definition of the offense and not at the “underlying circumstances” (or the facts of what the person actually did).[60]  Where the criminal statute of conviction is “divisible,” i.e., it contains some parts that have adverse immigration consequences and some parts that do not, the immigration courts will look to the “record of conviction” to determine under which portion of a divisible statute the noncitizen was in fact convicted.[61]  If the record of conviction does not demonstrate that the portion of the statute of which the noncitizen was convicted necessarily involved elements that always fit the definition of the immigration category (i.e., crime of violence), the conviction will not be considered as triggering the immigration consequences.

The record of conviction consists of the charging papers (indictment, complaint, etc.), plea or verdict, and sentence.[62]  Thus, the criminal sentencing hearing and the formal judgment can be part of the “record of conviction” that is considered to determine whether the particular conviction meets the definition of the immigration category, and thus triggers an adverse consequence such as deportability.  In such a case, counsel should attempt to make sure the clerk’s minutes of the sentence do not contain any evidence that would indicate the offense falls within the definition. 

For example, if the defendant is sentenced under a sentence enhancement penalizing great loss to the victim, such a court finding as part of the judgment might be considered by the immigration judge to establish that the amount of the loss to the victim exceeded $10,000, and that the fraud conviction therefore constitutes an aggravated felony conviction.[63]  Similarly, if a $50,000 restitution order is entered as part of the judgment or sentence, that may satisfy this requirement as well. 

In a fraud case involving loss, counsel should avoid creation of any record of conviction that indicates that the loss attributable to the particular count of conviction exceeded $10,000, and also, if possible, that the total loss from the entire scheme exceeded $10,000.  One way of doing so might be for the defendant to sign a civil confession of judgment that s/he owes the victim the restitution amount, but to leave restitution entirely out of the criminal sentencing proceeding.  Another way might be for the defendant to repay the loss in its entirety before sentencing, so that no restitution at all need be ordered as part of the sentence or judgment.  Another way might be to limit the formal restitution ordered by the court to the amount of loss (under $10,000) attributable only to the particular count to which the defendant entered a plea.

Similar concerns arise when the identity, relationship or age of the victim may appear in the record of conviction via the sentencing hearing or judgment of conviction so as to establish deportability on the basis of a domestic violence conviction, or a conviction of an offense involving sexual abuse of a minor as an aggravated felony.

 

Many different forms of punishment may be considered to be a penalty for purposes of establishing that a noncitizen has suffered a “conviction” under federal immigration law.[64]  For example, the costs and surcharges associated with a  criminal proceeding qualify as a form of “punishment” or “penalty” for purposes of establishing a “conviction.”[65]  Similarly, sentence to a mental hospital following a conviction of a crime is a “sentence” for immigration purposes, and sentence to a drug treatment facility is considered a sentence for purposes of satisfying the definition of conviction.[66]

[60] Matter of Palacios, Int. Dec. 3373 (BIA 1998); Matter of Alcantar, 20 I. & N. DEC. 801 (BIA 1994); Matter of Magallanes-Garcia, 22 I. & N. Dec. 1 (BIA 1998).

[61] See, e.g, Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999) (BIA reviews record of conviction to determine under what section of a divisible statute respondent was convicted; found that that subsection was not a “crime of violence” aggravated felony). 

[62] Ibid.

[63] Fraud, deceit, and tax evasion are aggravated felonies if the “loss to the victim” or revenue loss to the government is $10,000.  Money laundering and monetary transactions with illegally obtained funds are aggravated felonies if the “amount of the funds” exceeds $10,000.  INA § 101(a)(43)(M), (D); 8 U.S.C. § 1101(a)(43)(M), (D).  The IIRAIRA decreased the statutory amount from $200,000 to $10,000.

[64] INA § 101(a)(48)(A).

[65] Matter of Cabrera, 24 I. & N. Dec. 459 (BIA 2008) (finding that the costs associated with a deferred adjudication proceeding were sufficient to establish that a noncitizen has suffered a conviction). 

[66] Matter of V, 7 I. & N. Dec. 242 (BIA 1956). Sentence to a drug treatment facilities is considered a sentence for purposes of the satisfying the definition of "convicted." Dunn-Martin v. District Director, 426 F.2d 894 (9th Cir. 1970); Matter of Robinson, 15 I. & N. Dec. 197 (BIA 1975); United States ex rel. Abbenante v. Butterfield, 112 F. Supp. 324, 326 (E.D. Mich. 1953), aff'd per curiam, 212 F.2d 794 (6th Cir. 1954) (drug addict committed to public health service hospital was "sentenced to confinement" within the meaning of 8 U.S.C.A. § 1251(a)(4)). But see Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958) (a sentence for primarily rehabilitative confinement is not necessarily a "sentence to confinement" under § 1251(a)(4)); Matter of M, 8 I & N. Dec. 256 (BIA 1959).

Ninth Circuit

SENTENCE " MISDEMEANOR " PENAL CODE 18.5 -- RETROACTIVITY SENTENCE " REDUCTION OF FELONY TO MISDEMEANOR " RETROACTIVITY OF NEW LEGISLATION AMELIORATING PUNISHMENT
People v. Babylon, 39 Cal.3d 719 (1985) (where a statute defining a criminal offense was amended while the case was on appeal, narrowing the scope of the offense so that the defendants could no longer be said to have violated the statute, and there was no savings clause allowing prosecution under the former statute, defendants case must be dismissed, even assuming defendants acts did violate the former statute). CPCN: 8.9 [one yr sent imposed] CPCN: 8.22A [maximum sentence imm con]

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.