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Listserv Q&A for
"Immigration Consequences of Criminal Convictions: Problems, Solutions and Best Practices"

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Question:

I have a question that was not reached because time ran out. Could you ask the panel to answer the following question?

Regarding police reports, Lory Rosenberg stated that they are not admissable to prove conviction. However, police reports are admissible for discretionary purposes, tho not to prove the elements of the offenses. See Matter of Teixeira, 21 I&N Dec. 316, BIA 1996; and Matter of Grijalva, 19 I&N Dec. 713 (BIA 1988). Since discretion is important to so many forms of relief, how can practioners deal with this situation? ie, the admission of police reports for discretionary purposes results in denials of relief and order of removability. Anyway to prevent or limit?

Since judicial review of discretionary decisions is severely limited if not totally barred by the INA, I am quite concerned with this, as many cases require appeal of BIA summary affirmance.

Any thought would be most appreciated.

Answer by Lory Rosenberg:

Yes, they can be used to defeat relief as a matter of discretion. No ideas about how to avoid that other than to challenge/deny the portion of the report that is inconsistent with the conviction itself and provide evidence to rebut it in the discretionary phase of proceedings.


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