• For purposes of determining deportation/removal, it is the elements of the offense of conviction (not what the person did) that are relevant.

• To determine the elements of conviction, the courts first look to the actual language of the statute. Under certain circumstances, the courts are permitted to look to the record of conviction (ROC) for the purpose of determining the elements of the offense that the defendant plead to or was found guilty of committing.

• The ROC includes the judgment, jury instructions, a signed guilty plea, the transcript of the plea proceedings, the sentence, and the transcript of the sentencing hearing.

• The ROC does not include police reports, affidavits of probable cause, presentence reports, or statements by the noncitizen defendant outside of the judgment and sentencing hearing.

When an immigration authority or a judge in a federal prosecution reviews a prior conviction to determine whether it is a ground of inadmissibility, deportability, or falls within the aggravated felony definition, she will consult only a limited number of documents from the criminal proceedings to identify the elements of the offense of conviction. Thus, how defense counsel crafts the defendant’s plea is of critical importance. In most instances, criminal defense counsel should keep the record of conviction opaque as to what— beyond the minimum statutory language that defines the offense— the non-citizen was convicted of. The test for removability under a conviction-based ground is: “what was the offense of conviction?” and not, “what was the underlying conduct?” In many cases, removability requires looking beyond the statute to the record of conviction, and if the record of conviction is opaque, the immigrant will not be found removable. This is one of the most important defense strategies for criminal and immigration defense counsel. In many situations, an informed use of this analysis will permit a noncitizen to plead to an offense that is acceptable to the prosecution but does not cause adverse immigration consequences.