In a published decision, the BIA held that an Immigration Judge may, in performing a modified categorical analysis, consider a police report from an underlying criminal conviction when the police report formed part of the factual basis of the conviction. Matter of Milian-Dubon, 25 I&N Dec. 197 (BIA Feb. 19, 2010) (Grant, Miller, and Malphrus). Board member Malphrus wrote the panel’s decision.

This case involved an LPR placed into removal proceedings due to a conviction for an alleged domestic violence aggravated felony under INA § 237(a)(2)(E)(i). “The Immigration Judge determined that the respondent’s record of conviction consisted of the criminal complaint and the guilty plea, and he concluded that these documents did not provide sufficient evidence to establish that the respondent was convicted of a crime of violence.” Matter of Milian-Dubon, 25 I&N Dec. at 198. The IJ declined to consider the police report. The record of conviction in this case, the BIA stated, consisted of the criminal complaint and the guilty plea. Matter of Milian-Dubon, 25 I&N Dec. at 200. Accordingly, the IJ terminated proceedings. DHS appealed, arguing, “that the Immigration Judge erred in excluding from his ‘modified categorical’ analysis of the respondent’s conviction a police report that formed the factual basis for his guilty plea.” Matter of Milian-Dubon, 25 I&N Dec. at 198.

In reaching its holding, the Board first noted that the modified categorical approach allows an IJ to look “beyond the language of the statute of conviction to a specific set of judicially noticeable documents that are part of the record of conviction, including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and any explicit factual findings by the trial judge to which the alien assented in the criminal proceedings.” Matter of Milian-Dubon, 25 I&N Dec. at 199.

Importantly, “[t]he signed guilty plea reflects that the respondent…stipulated to the police report prepared in connection with his arrest as the factual basis for his guilty plea.” Matter of Milian-Dubon, 25 I&N Dec. at 200. The non-citizen’s stipulation regarding the police report proved to be the critical fact in the BIA’s decision.

The Board acknowledged the longstanding position enunciated in Matter of Teixeira, 21 I&N Dec. 316, 319 (BIA 1996), that a police report does not form part of the record of conviction. In that very sentence, however, the Board went on to limit Matter of Teixeira in a manner that may have a substantial impact on many non-citizens. “[T]he 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.” Matter of Milian-Dubon, 25 I&N Dec. at 200 (quoting Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005) (internal quotations omitted)).

The Board disagreed with Milian-Dubon’s argument “that the police report should not be considered because it was never admitted into the record of his criminal proceedings or incorporated into the criminal complaint.” Matter of Milian-Dubon, 25 I&N Dec. at 201. The police report should be considered as part of the record of conviction, the Board announced, because it was referenced in the plea agreement “as the ‘factual basis’ for the respondent’s plea.” Matter of Milian-Dubon, 25 I&N Dec. at 201. “It was not necessary for the respondent to acknowledge the truth of every statement in the police report or for the judge in the criminal case to have specifically reviewed or referenced the report during the plea proceedings.” Matter of Milian-Dubon, 25 I&N Dec. at 201.

The Board then added that the police report did not have to come from the files of the criminal case. Matter of Milian-Dubon, 25 I&N Dec. at 202. The Board did not state where the police report in this case came from, but it suggested that this is irrelevant. “The only requirement is that the police report or reports relied on in the immigration proceedings be incorporated by reference as at least part of the factual basis for the guilty plea.” Matter of Milian-Dubon, 25 I&N Dec. at 202.

This decision adds one more obstacle to defending individuals in removal proceedings. It also raises—yet again—the importance of criminal defense attorneys and immigration attorneys working hand-in-hand from the very early stages of the criminal process.