The record of conviction
When a statute can be violated in more than one way, the immigration judge is allowed to look past its text to a narrow set of documents from the criminal case to see which version you were convicted of. That set is the record of conviction: the charging document, the plea agreement, the transcript of the plea colloquy and the judgment. What those documents say is decided at the plea, by people who can draft them. This page is about making them say only what they have to, and about the grounds that reach past them.
Current as of October 2026. We re-check this page regularly and after any rule change.
The record is the fourth of the moving parts on the plea strategy page, and it is the one most often left to chance. The count, the sentence and the disposition are negotiated; the words of the factual basis and the text of the charging document are usually whatever the clerk and the prosecutor produced. For a noncitizen, those words are evidence in a second case. This page is about which documents that second case may read, which questions reach past them, and how the plea is drafted with both in mind.
When the judge may open the record
Most grounds of removal are decided under the categorical approach, described on the categorical approach page. The immigration judge compares the elements of the offense of conviction to the federal definition, asks what the least serious conduct the statute punishes would be, and does not look at what you actually did. Under Moncrieffe v. Holder, 569 U.S. 184 (2013), the minimum conduct controls.
The record comes in only when the statute is divisible: when it lists alternative elements, so that a conviction under it could be for one offense or another. Under Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 579 U.S. 500 (2016), the judge may then use the modified categorical approach to identify which alternative you were convicted of, and the distinction is between alternative elements, which a jury must agree on, and alternative means, which it need not. A statute that lists means is not divisible, and the record stays closed. That distinction is decided statute by statute, and whether your New York, New Jersey or Florida statute is divisible is a question to ask us.
When the record opens, it opens only so far. The documents the judge may consult are the ones that establish what the conviction was for: the charging document (the indictment, information or complaint as it stood at the plea), the plea agreement, the transcript of the plea colloquy, and the judgment. The purpose is to identify the elements of the offense of conviction, not to reconstruct the facts, and a document that does not do that job is outside the inquiry.
The record is written at the plea, by the parties
Every document on that list is drafted or spoken by the prosecutor, the defense lawyer, the defendant and the judge, before or at the plea. None of it is discovered later. A charging document amended to the count of conviction, a plea agreement that identifies the subsection or does not, a colloquy that names a substance or a complainant or does not: these are choices, and for a noncitizen they are the choices that decide the immigration case.
The circumstance-specific exceptions
A few questions in the immigration statute are not about elements at all. They ask about a fact of the particular case, and for those the judge is not confined to the categorical approach or to the four documents. The Supreme Court and the Board have identified three that come up at the plea.
| Question | How it is decided | What this means for the plea | Authority |
|---|---|---|---|
| Whether the loss to the victim in a fraud or deceit offense exceeded $10,000, the statutory loss threshold in 101(a)(43)(M)(i) | From the record of the case, circumstance-specific, tied to the count of conviction | The plea agreement, any stipulation, the restitution order and sentencing findings on the count of conviction will be read; keep the loss on that count below the line and the restitution matched to it | Nijhawan v. Holder, 557 U.S. 29 (2009) |
| Whether the victim of a crime of violence was a spouse, co-parent, cohabitant or other protected person, making it a crime of domestic violence under 237(a)(2)(E)(i) | From reliable evidence, circumstance-specific; the crime-of-violence element stays categorical | A record silent on the relationship does not establish it; a charging document or colloquy that names the complainant as a spouse does | Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016) |
| Whether a court found that the person violated the protective portion of a protection order, under 237(a)(2)(E)(ii) | From the court's finding; no conviction required and the categorical approach does not apply | Avoid a finding on the protective portion of the order; a plea to a different count with a finding on the record still triggers the ground | Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017) |
The lesson of all three is the same. Where the statute asks about a fact, the record will be read for that fact, and so will other reliable evidence. The defense is not to hope the judge does not look; it is to make sure the count of conviction, the restitution order and the colloquy do not supply the fact, and to know that a fact established elsewhere may still come in. The fraud and theft page and the domestic violence page go through each one.
Admissions: what you say in court is evidence
Two inadmissibility grounds do not need a conviction, and for them the plea colloquy is not a source of elements but a source of admissions. INA 212(a)(2)(A)(i) reaches a person who admits having committed a crime involving moral turpitude or a violation of a controlled-substance law, or who admits the essential elements of one. INA 212(a)(2)(C) reaches a person the government has reason to believe is or has been an illicit trafficker in a controlled substance, or has knowingly assisted one, with no conviction and no admission required. Both apply to a person seeking admission or adjustment, which includes a permanent resident returning from travel who has committed an offense identified in 212(a)(2), under INA 101(a)(13)(C)(v).
This is why the disposition and the record are separate questions. A no-plea diversion, a youthful offender adjudication or a dismissed count avoids the conviction. An allocution that says "I sold the cocaine" is an admission of the elements of a controlled-substance offense, and evidence supporting reason to believe, whether or not a conviction followed. The factual basis in a drug case is drafted so that it supports the plea to the count of conviction and nothing beyond it: not the substance where the statute does not require one to be named, not the quantity, not the intent to sell where the plea is to possession. The drug offenses page explains why the substance in particular matters under Mellouli v. Lynch, 575 U.S. 798 (2015).
Pereida: the inconclusive record cuts both ways
A record that does not say which alternative of a divisible statute you were convicted of is inconclusive, and what that does depends on who carries the burden. To remove a person who was admitted, DHS must prove deportability by clear and convincing evidence, under INA 240(c)(3)(A) and Woodby v. INS, 385 U.S. 276 (1966). An inconclusive record on a divisible statute cannot meet that burden, and the charge fails. But the same person, applying for cancellation of removal or another form of relief, bears the burden of establishing eligibility under 8 C.F.R. 1240.8(d), and under Pereida v. Wilkinson, 592 U.S. 224 (2021), an applicant who must show that a conviction is not disqualifying loses if the record is inconclusive. A person seeking admission has the heaviest burden of all: to show clearly and beyond doubt that they are entitled to be admitted, under INA 240(c)(2).
The consequence for the plea is that "keep the record silent" is not always the right advice. For a permanent resident whose only exposure is the charge of deportability, a silent record is a defense. For a person who will need to prove eligibility for relief, or who is applying for admission or adjustment, a silent record is a record that cannot carry their burden, and a plea to a clearly identified subsection that is outside the ground may be worth more than ambiguity. Which one you are is a question about your status, and the status pages answer it before the record is drafted.
Drafting the factual basis, and getting the certified record
The factual basis is the part of the colloquy the defense lawyer can draft. Its job is to establish the elements of the count of conviction so that the plea is valid, and to do nothing else. In practice that means writing it out in advance, agreeing it with the prosecutor, and reading it into the record rather than answering the court's questions freely. Every word beyond the elements is a word the immigration judge may read, either as identifying a subsection under the modified categorical approach, as establishing a circumstance-specific fact, or as an admission. The count named in the amended charging document, the subsection identified or not identified in the plea agreement, and the sentence written in the judgment are drafted the same way, for the same reason.
Nothing is conceded before the certified record is in hand
When we review a plea that has already been entered, the first step is to obtain the certified record of conviction from the criminal court: the charging document as it stood at the plea, the plea agreement if there was one, the transcript of the colloquy, and the judgment. Not the client's memory of it, and not the criminal lawyer's summary. The count, the subsection and the sentence in those documents are frequently not what anyone recalls, and a concession to the immigration court made on a recollection cannot easily be withdrawn. The after a plea section describes what happens next.
Read next: the categorical approach, immigration-safer pleas, deferred and withheld adjudication, or deportability versus inadmissibility.
Common questions
Can the immigration judge read the police report?
Under the categorical approach the judge compares the elements of the offense to the federal definition, and may consult the record of conviction only where the statute is divisible, under Descamps v. United States and Mathis v. United States. The record of conviction is the charging document, the plea agreement, the plea colloquy transcript and the judgment. For the grounds that are decided categorically, the inquiry is limited to those documents. For the few circumstance-specific questions, such as the loss amount under Nijhawan v. Holder or the domestic relationship under Matter of H. Estrada, the judge may consider reliable evidence beyond them, and what counts as reliable is litigated case by case.
If the record does not say which subsection I pleaded to, who wins?
It depends on who has the burden. To remove a person who was admitted, the government must prove deportability by clear and convincing evidence, so an inconclusive record on a divisible statute is the respondent's friend. But under Pereida v. Wilkinson, a person applying for relief bears the burden of showing the conviction is not disqualifying, and loses if the record is inconclusive. The same silent record can defeat the charge and then defeat the application.
The disposition was not a conviction. Does what I said in court still matter?
It can. For a person seeking admission or adjustment, INA 212(a)(2)(A)(i) reaches a person who admits committing a crime involving moral turpitude or a controlled-substance violation, or its essential elements, with no conviction at all. And INA 212(a)(2)(C) reaches a person the government has reason to believe is a drug trafficker, with no conviction and no admission. A colloquy that names the substance, the quantity or the intent is evidence for both.
Why do you insist on the certified record before saying anything?
Because the immigration judge will read the certified documents, not the memory of the plea. The count of conviction, the subsection, the sentence in the judgment and the words of the colloquy decide the categorical and the circumstance-specific questions, and they are frequently not what the client or the criminal lawyer recalls. Nothing is conceded before the record is in hand, because a concession made on a wrong recollection is very hard to take back.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.