## Facts

- Manuel Olivas-Motta, a lawful permanent resident, was charged as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having two or more convictions for crimes involving moral turpitude (CIMTs).
- He had two Arizona convictions relevant to removability:
  - A 2003 conviction for facilitation of unlawful possession of marijuana, which he conceded was a CIMT.
  - A 2007 conviction for endangerment under Ariz. Rev. Stat. § 13-1201.
- Arizona’s endangerment statute criminalizes recklessly endangering another with a substantial risk of imminent death or physical injury, with felony treatment when the risk is imminent death.
- To show the endangerment conviction was a CIMT, the government submitted the charging document and written plea agreement; the immigration judge (IJ) and Board of Immigration Appeals (BIA) also relied on police reports describing the underlying conduct.
- Olivas-Motta argued the agency could not use evidence outside the record of conviction, such as police reports, to decide whether the endangerment conviction was a CIMT.

## Issues

1. Whether immigration adjudicators may consider evidence outside the record of conviction (including police reports) to determine whether a noncitizen has been “convicted of” a CIMT under the INA.
2. Whether “crime involving moral turpitude” is a generic offense requiring application of the categorical and modified categorical approaches, which limit the inquiry to statutory elements and a narrow set of record-of-conviction documents.
3. Whether the IJ and BIA committed legal error by relying on police reports to classify Olivas-Motta’s endangerment conviction as a CIMT and thus find him removable.

## Decision

- The Ninth Circuit granted the petition for review and remanded.
- The court rejected the Attorney General’s approach in Matter of Silva-Trevino insofar as it authorized consideration of evidence outside the record of conviction to determine whether a person was “convicted of” a CIMT.
- The court held that CIMT determinations must be made using the categorical approach and, when appropriate, the modified categorical approach, confined to the record of conviction.
- Because the IJ and BIA relied on police reports to find the endangerment conviction a CIMT, the removability determination rested on an impermissible method and could not stand.

## Legal Principles

- For INA provisions requiring that a noncitizen be “convicted of” a CIMT, the adjudicator’s inquiry is limited to the statutory elements of the offense and, if necessary, the record of conviction as permitted by the modified categorical approach.
- A CIMT is treated as a generic offense for categorical-analysis purposes; whether a conviction qualifies turns on the elements established by the conviction, not on unproven or extra-record allegations about the underlying conduct.
- The record of conviction may include documents such as the charging instrument, plea agreement, plea colloquy transcript, and judgment, but does not include police reports or similar investigative materials.
- Agency reliance on non-record evidence to supply facts about the offense conduct is legal error when determining whether a conviction is a CIMT.

## Conclusion

The Ninth Circuit held that immigration adjudicators may not rely on police reports or other evidence outside the record of conviction to determine whether a noncitizen has been “convicted of” a crime involving moral turpitude, granted the petition for review, and remanded for further proceedings using the categorical or modified categorical approach limited to record-of-conviction materials.


Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013)