Originally posted by niladri30
Jaic,
I know you mean well, but many URLs, while they have genuinely useful information, can contain attempts by attorneys to frighten potential clients to come to them.
Dead giveaways are statements like: "From immigration's perspective, an "arrest record" alone can establish the person's bad moral character (depending on what was written in the police report.) and lead to deportability."
While this can be true in some cases insofar that it may prevent an immigraion judge from finding stuff to rule in the noncitizen's favor, it must also be presented in perspective. At the risk of another interminably long post, I am posting some stuff from the UC Davis guide again, as it mey be important to people. Also, note that this kind of scrutiny is reserved for narcotics possession,severe assault and battery, etc. It is not worth BCIS' while to cause you problems if they know they will lose in court.
9.3 Categorical Analysis. In order to determine if a conviction for a particular crime is an aggravated felony, deportable offense, or an excludable offense, the BIA and immigration judges must first look to the statute itself and make a finding whether a conviction under the statute necessarily includes the elements required for adverse immigration consequences. This is known as the “categorical” approach. The actual conduct which resulted in the conviction should not be considered in immigration proceedings.
§ 9.4 Divisible Statutes. A “divisible statute” includes violations that carry both adverse immigration consequences and violations with no immigration consequences. Where the statute under which the noncitizen was convicted is “divisible,” the BIA looks to the “record of conviction” to determine whether the alien’s conduct as revealed in the “record of conviction” includes the
required elements for the adverse immigration consequences.
§ 9.5 Record of Conviction. The “record of conviction” consists of the indictment (criminal information or complaint), the plea, the verdict, and the sentence. It includes statements and admissions made by the defendant and judge during plea and sentencing hearings that are substantiated by official court transcripts. The BIA has found police reports to be outside of the record of conviction, but have allowed judges to consider them in matters of discretionary relief. “[T]he the record of conviction does not include the trial record, pre-sentence report, the prosecutor’s sentencing report, the prosecutor’s sentencing remarks, or the trial judge’s opinion."
In In re Teixeira, Int. Dec. 3273, 1996 WL 229452 (BIA 1996), the BIA held that the “record of conviction” includes all documents that are admissible as evidence in any proceeding before an immigration judge to prove a conviction as provided by 8 C.F.R. § 3.41. The regulation provides that:
“In any proceeding before an immigration judge, any of the following documents or records shall be admissible as evidence in proving a criminal conviction: (1) a record of judgment and onviction; (2) a record of plea, verdict and sentence; (3) a docket entry from court records that indicates the existence of a conviction; (4) minutes of a court proceeding or a transcript of
a hearing that indicates the existence of a conviction; (5) an abstract of a record of conviction prepared by the court in which the conviction was entered, or by a state official associated
with the state’s repository of criminal justice records, that indicates the following: the charge or section of law violated, the disposition of the case, the existence and date of conviction, and
the sentence; (6) documents or records [including electronic records] prepared by, or under the direction of, the court in which the conviction was entered that indicate the existence of a
conviction. . . ."
