Hernandez-Martinez v. Ashcroft
| Decision Date | 11 September 2003 |
| Docket Number | INS No. A92-440-540.,No. 02-70048.,02-70048. |
| Parties | Eliceo HERNANDEZ-MARTINEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Judy Flanagan, Phoenix, AZ, for Petitioner.
Regional Counsel, Western Region Immigration & Naturalization Service, Laguna Niguel, CA, Ronald E. LeFevre, Chief Legal Officer, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, District Director, Immigration & Naturalization Service, Phoenix, AZ, Anh-Thu P. Mai, Office of Immigration Litigation, Civil Division, Washington, DC, Shelly R. Goad, DOJ-U.S. Department of Justice, Civil Div./Office of Immigration Lit., Ben Franklin, Washington, DC, for Respondent.
Before: NOONAN, TASHIMA, and WARDLAW, Circuit Judges.
John Ashcroft, Attorney General of the United States, petitions for rehearing by the panel, asking the panel to "clarify its decision and specifically remand the case to the Board to determine under which statutory subsection of the Arizona statute Hernandez-Martinez was convicted and whether a conviction under that subsection subjects him to remand." In support of this request, Ashcroft cites to the Administrative Record.
We have accordingly examined the portions of the A.R. cited. The first, pages 73-74, sets out the admission of Hernandez that he has received the charging document of the service and that he admits removability for being present without admission. The charging document of the service at A.R. 298 is itself referenced. The next citation is to A.R. 95-110. Pages 95-101 are the record of his sentencing to probation by the Superior Court of Maricopa County, Arizona for the offense stated in our opinion. Pages 102-110 contain the Presentence Report in that case.
In several cases cited by Ashcroft we have noted the documents that the Board of Immigration Appeals is free to consider in determining whether a conviction under a divisible statute constitutes an aggravated felony. The documents include the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment. Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003). We have specifically held that a Presentence Report is insufficient evidence. United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir.2002) (en banc). Four days after Corona-Sanchez was filed, an opinion of this court was filed permitting use of a Presentence Report Abreu-Reyes v. INS, 292 F.3d 1029, 1032 (9th Cir.2002). The opinion failed to take note of the en banc decision and was pretty clearly drafted and sent to the printer before Corona-Sanchez came down. The opinion was not withdrawn or modified, providing what...
To continue reading
Request your trial
-
Arguelles-Olivares v. Mukasey
...a report simply is not a part of the formal record of conviction.") (emphasis in original) (citations omitted); Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003) (holding that a PSR is "insufficient evidence" to show that an alien's conviction constitutes an aggravated felo......
-
Fernandez-Ruiz v. Gonzales
...petitioner's conviction entailed an admission to, or proof of, the necessary elements of a crime of violence. Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003). Here, with respect to Fernandez-Ruiz's 2003 misdemeanor domestic violence conviction, the record contains three ......
-
Conteh v. Gonzales
...the narrative statement in a PSI Report as evidence of the facts underlying a putative predicate offense); Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003) (holding that a PSI Report is insufficient to prove that an alien's conviction embodied every element of an enumerate......
-
Aguilar-Turcios v. Holder
...v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003); see also Shepard, 544 U.S. at 20-21, 125 S.Ct. 1254; Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003). Thus, in the present case I would examine these documents to determine "whether a plea of guilty to [the Article 92 convict......