es a firearms violation within the meaning of section 241(a)(2)(C) of Immigration and
Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. V 1993).
(2) A police report, standing alone, is not part of a record of conviction, nor does it fit any of
the regulatory descriptions found at 8 C.F.R. § 3.41 (1995) for documents that are admissi-
ble as evidence in any proceeding before an Immigration Judge in proving a criminal con-
viction, and it therefore should not be considered in determining whether the specific
offense of which an alien was convicted constituted a firearms violation.
(3) Although a police report concerning circumstances of arrest that is not part of a record of
conviction is appropriately admitted into evidence for the purpose of considering an applica-
tion for discretionary relief, it should not be considered for the purpose of determining
deportability where the Act mandates a focus on a criminal conviction, rather than on
conduct.
FOR RESPONDENT: Joseph M. Tapper, Esquire, Bloomfield, Connecticut
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Richard G. Buyniski,
General Attorney
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG,
MATHON, and GUENDELSBERGER, Board Members
FILPPU, Board Member:
In a decision dated December 17, 1993, an Immigration Judge found the
respondent deportable pursuant to section 241(a)(2)(C) of the Immigration
and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. V 1993). The respon-
dent has appealed from that decision. The respondents request for oral argu-
ment before the Board is denied. See 8 C.F.R. § 3.1(e) (1995). The appeal
will be sustained and the deportation proceedings will be terminated.
316
Interim Decision #3273
Interim Decision #3273 I. ISSUE
The issue raised by the appeal is whether a police report may be consid-
ered to determine whether an alien is deportable under section 241(a)(2)(C)
of the Act, as an alien convicted of a firearms violation. We hold that a police
report such as in this case may not be considered to determine whether an
alien is deportable under section 241(a)(2)(C) of the Act. We also hold that
where the statute under which an alien was convicted encompasses offenses
that constitute firearms violations and offenses that do not, the determination
whether the alien was convicted of a firearms violation is limited to an exami-
nation of the statute, the record of conviction, and any other documents
described by the regulations as admissible as evidence in proving a criminal
conviction.
II. PROCEDURAL HISTORY
The respondent, a 28-year-old native and citizen of Portugal, was admitted
to the United States as a lawful permanent resident on February 7, 1985. On
October 7, 1992, the Immigration and Naturalization Service issued an Order
to Show Cause and Notice of Hearing (Form I-221) charging the respondent
with deportability under section 241(a)(2)(B)(i) of the Act. In his December
17, 1993, decision, the Immigration Judge determined that the Service had
not sustained its burden of establishing the respondents deportability pursu-
ant to section 241(a)(2)(B)(i) of the Act. The Service has not appealed from
that determination, and it is not at issue.
On October 5, 1993, the Service issued Additional Charges of
Deportability (Form I-261), charging the respondent with deportability under
section 241(a)(2)(C) of the Act, as an alien convicted of a firearms violation.
The Service alleged that the respondent was on October 28, 1988, convicted
in the Superior Court, Bridgeport, Connecticut, for the offense of having a
weapon in a motor vehicle, to wit; a .25 cal. Beretta handgun, serial no.
M39305, in violation of section 29-38 of the Connecticut General Statutes.
At a deportation hearing held on December 17, 1993, the respondent
denied the factual allegation on the Additional Charges of Deportability, as
well as deportability under section 241(a)(2)(C) of the Act. The respondent
filed an Application for Advance Permission to Return to Unrelinquished
Domicile (Form I-191) pursuant to section 212(c) of the Act, 8 U.S.C.
§ 1182(c) (Supp. V 1993). The Immigration Judge admitted into evidence a
record of plea, verdict, and sentence prepared by the State of Connecticut
Superior Court.
This document reflects that on October 28, 1988, the respondent was con-
victed under section 29-38 of the Connecticut General Statutes, but does not
reflect the specific weapon in issue.
The Immigration Judge also admitted into evidence, over the objection of
counsel for the respondent, a police incident report of the Police Department
317
Interim Decision #3273 of Bridgeport, Connecticut. The police report reflects that on August 14,
1988, officers of the Police Department of Bridgeport, Connecticut, stopped
the respondent in his vehicle, arrested him, and discovered in the vehicle a
gun . . . described as follows[:] a Mod. 950 .25 Cal. B-Cal. 6.35 Beretta
Serial #M39305" with six live rounds in the clip."
In his decision, the Immigration Judge stated: Based on the record of con-
viction and the police report submitted in connection therewith, . . .
deportability has been established by clear, convincing, and unequivocal evi-
dence with respect to the weapons violation charge.
III. CONSIDERATION OF POLICE REPORT TO DETERMINE
DEPORTABILITY UNDER SECTION 241(a)(2)(C)
OF THE ACT
A. Divisible Weapons Statute
Any alien who at any time after entry is convicted under any law of pos-
sessing or carrying any weapon which is a firearm is deportable. See section
241(a)(2)(C) of the Act. In contrast to other grounds of deportation, where an
aliens conduct is made the focus of the inquiry, e.g., section 241(a)(2)(B)(ii)
of the Act (making deportable a drug abuser or addict), the firearms offense
provision directs the inquiry to whether the alien stands convicted under any
law of certain generally described firearms or destructive device violations.
To determine whether the respondent was convicted of a firearms violation,
we look first to the provisions of the law under which he stands convicted.
The respondent was convicted under section 29-38 of the Connecticut
General Statutes. That section, captioned Weapons in vehicles, provides,
in relevant part:
Any person who knowingly has, in any vehicle owned, operated or occupied by him, any
weapon . . . shall be fined . . . or imprisoned . . . . The word weapon, as used in this section,
means any pistol or revolver, any dirk knife or switch knife or any knife having an automatic
spring release device by which a blade is released from the handle, having a blade of over
one and one-half inches in length, and any other dangerous or deadly weapon or instrument,
including any slung shot, black jack, sand bag, metal or brass knuckles, stiletto, knife, the
edged portion of the blade of which is four inches or over in length or martial arts weapon as
defined in section 53a-3.
Conn. Gen. Stat. § 29-38 (1988).
The statute under which the respondent was convicted is divisible; it
encompasses offenses that constitute firearms violations and offenses that do
not. Possession of a firearm is not an essential element of the crime of which
the respondent was convicted. Where the statute under which an alien was
convicted is divisible, we look to the record of conviction, and to other docu-
ments admissible as evidence in proving a criminal conviction, to determine
whether the specific offense for which the alien was convicted constitutes a
firearms violation within the meaning of section 241(a)(2)(C) of Act. 8
318
Interim Decision #3273 C.F.R. § 3.41 (1995); cf., e.g., Matter of Short, 20 I&N Dec. 136, 137 (BIA
1989) (involving deportability for crimes of moral turpitude under section
241(a)(2)(A)(i) of the Act). Therefore, we look to the respondents record of
conviction, and to other documents admissible as evidence in proving a crim-
inal conviction, to determine whether the specific offense of which he was
convicted constitutes a firearms violation within the meaning of section
241(a)(2)(C) of Act.
B. Police Report and Record of Conviction
The police report indicates that the respondent may, in actual fact, have
had a firearm in his car at the time of his arrest. However, the issue before us
is not whether the respondent unlawfully had a firearm in his car as a matter
of fact, but whether he was convicted of such misconduct. None of the docu-
ments contained in the record of proceedings of the kind that we have previ-
ously recognized as parts of a record of conviction establishes that fact.
See, e.g., Matter of Rodriguez-Cortes, 20 I&N Dec. 587, 588 (BIA 1992)
(including an information in record of conviction); Matter of Short, supra,
at 137-38 (including indictment, plea, verdict, and sentence in record of
conviction); Matter of Mena, 17 I&N Dec. 38 (BIA 1979) (considering tran-
script from proceedings of arraignment in which alien accepted guilty plea as
part of record of conviction); Matter of Esfandiary, 16 I&N Dec. 659, 661
(BIA 1979) (including charge or indictment, plea, verdict, and sentence in
record of conviction); Matter of Ghunaim, 15 I&N Dec. 269, 270 (BIA
1975) (including charge or indictment, plea, judgment or verdict, and sen-
tence in record of conviction). While the Service argues for reliance on the
police report, it does not claim that the police report is actually part of the
record of conviction in this case. Nor does the Service expressly challenge
the established case law holding that one looks to the record of conviction to
determine the n