BIA on Immigration Courts and Evidence Outside the Record of Conviction | Matter of Ahortalejo-Guzman, 25 I & N Dec 465 (BIA 2011)

One of the elements for Cancellation of Removal for Non-LPR (10 year cancellation case) eligibility is “good moral character.” If the applicant has been convicted of a Crime Involving Moral Turpitude (CIMT), the applicant becomes ineligible for cancellation of removal relief.

In this case, the Respondent was convicted of assault. In his Individual Hearing, the Immigration Judge ruled that the respondent’s assault conviction was for a crime involving moral turpitude.  On appeal, the respondent argued that he was not convicted of an assault involving family violence, but was instead convicted of simple assault, which is not a CIMT.  Moreover, when the Immigration Judge ruled that the respondent was convicted of a CIMT, the IJ used police reports (which was not part of the record of conviction) to determine whether the respondent’s assault conviction was a CIMT.

The BIA though held that evidence outside the record of conviction may only be considered in determining whether a conviction is a CIMT when the record itself does not conclusively answer that question. Thus, this holding allows Immigration Judges to undermine plea agreements by going behind a conviction to use sources outside the record of conviction to determine that an alien was convicted of a more serious offense that call fall within CIMTs.

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