BIA: Limits when IJ may consider evidence outside record of conviction

In a published decision released last week, the BIA held that an Immigration Judge may not go behind the record of conviction to determine whether a crime involves moral turpitude. Matter of Ahortalejo-Guzman, 25 I&N Dec. 465 (BIA 2011) (Cole, Pauley, and Greer). Board member Pauley wrote for the panel.

This case involves an individual who entered without inspection and was later convicted by guilty plea of assault in Texas. Matter of Ahortalejo-Guzman, 25 I&N Dec. at 465. The IJ found that Ahortalejo-Guzman was not eligible for Cancellation of Removal for Non-LPRs because his conviction was a CIMT. Matter of Ahortalejo-Guzman, 25 I&N Dec. at 466.

To reach this determination the IJ, relying on Matter of Silva-Treviño, 24 I&N Dec. 687, 696-704 (A.G. 2008), used statements contained in a police report and the respondent’s removal hearing testimony indicating that the victim of the respondent’s assault was his wife. Matter of Ahortalejo-Guzman, 25 I&N Dec. at 467. Silva-Treviño allows an IJ to “consider evidence beyond the record [of conviction]” “when the record of conviction fails to show whether the alien was convicted of a crime involving moral turpitude.” Matter of Ahortalejo-Guzman, 25 I&N Dec. at 467 (quoting Matter of Silva-Treviño, 24 I&N Dec. at 699).

The IJ’s decision to turn to evidence outside the record of conviction was a key analytical maneuver because simple assault is not a CIMT, but assault involving family violence is a CIMT because of the additional aggravating factor of family violence. Matter of Ahortalejo-Guzman, 25 I&N Dec. at 467.  The BIA explained that neither the police report nor the respondent’s testimony were part of the record of conviction. Matter of Ahortalejo-Guzman, 25 I&N Dec. at 467. 

As such, evidence of the victim’s identify was not contained in the record of conviction. Because the record of conviction did not indicate that the assault involved family violence, the BIA held that the record of conviction could not support a finding that the respondent was “convicted” of assault involving family violence as is necessary to be ineligible for Cancellation. INA § 240A(b)(1)(C).

Importantly, the record of conviction—specifically, the judgment and sentence—explicitly stated that the trial court found that the respondent’s offense “‘did not involve family violence.’” Matter of Ahortalejo-Guzman, 25 I&N Dec. at 468 (quoting the trial court judgment and sentence). Consequently, the BIA determined that “[w]here the record of conviction conclusively shows that a conviction does not involve family violence, the fact that other evidence outside the record of conviction may indicate that the victim was part of the offender’s family does not establish that the offender was convicted on that basis (i.e., that such fact was found beyond a reasonable doubt for purposes of the guilty plea)….” Matter of Ahortalejo-Guzman, 25 I&N Dec. at 468-69.

This result of this explicit finding by the trial court that the respondent’s offense does not include the critical aggravating factor that would have converted this offense from one not involving moral turpitude to one involving moral turpitude is that Matter of Ahortalejo-Guzman might have much more limited reach than would otherwise be true. Many—perhaps most—trial courts do not go out of their way to explicitly include in the record of conviction a statement regarding what they did not find.

As such, the BIA’s decision seems to leave room open for an IJ to turn to documents like the police report that are outside the record of conviction where the record of conviction does not “conclusively” show that a conviction does not involve moral turpitude. Matter of Ahortalejo-Guzman, 25 I&N Dec. at 468. We will have to wait to see how IJs interpret it.