Matter of Milian (2/19)

**Modified categorical approach, police reports**

In applying the modified categorical approach to assess an alien’s conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings.   In this case, the relevant conviction documents include the criminal complaint and the respondent’s signed guilty plea. Count 2 of the complaint charges that on or about June 3, 2004, the respondent did willfully and unlawfully use force and violence upon his wife, in violation of Cal Penal Code section 243(e)(1). The signed guilty plea reflects that the respondent pled guilty to Count 2 and stipulated to the police report prepared in connection with his arrest as the factual basis for his guilty plea. While a police report, standing alone is not part of the record of conviction, the respondent’s decision to incorporate the police report into the guilty plea made the report an “explicit statement ‘in which the factual basis for the plea was confirmed by the respondent.  Even though the police report  was never admitted into the record of his criminal proceedings or incorporated into the criminal complaint, the plea agreement references the police report as the “factual basis” for the respondent’s plea per People v. West, 477 P.2d 409 (1970).  The plea form contains the handwritten statement “stip to police report as factual basis,” and the respondent initialed the statement.  Therefore,  the Immigration Judge erred in failing to view the police report as part of the ROC and to consider its contents in applying the modified categorical analysis.

 http://www.justice.gov/eoir/vll/intdec/vol25/3674.pdf