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In a case of first impression, the 2nd U.S. Circuit Court of Appeals has ruled that the Board of Immigration Appeals cannot rely on the “narrative statements” of police reports to determine that individuals have committed aggravated felonies and therefore should be deported under immigration law. The opinion, written by Judge Sonia Sotomayor, held that a decision by the Board of Immigration Appeals (BIA) to deport John P. Dickson for committing first-degree unlawful imprisonment was improperly based on the written hearsay of a probation officer contained in Dickson’s pre-sentence report. The Sept. 9 decision in Dickson v. Ashcroft, 02-4102, stopped short of deciding whether the BIA could use other portions of pre-sentencing reports in some cases to decide whether it should issue a deportation order. Instead, the court limited its ruling to declare that “factual narratives” in police reports, on their own, were insufficient to establish that the defendant had committed a removable offense. The judges joining Sotomayor were Joseph M. McLaughlin and Pierre N. Leval. Filing amicus briefs arguing the plaintiff’s position were the New York State Association for Criminal Defense Attorneys, the New York State Defenders Association and the National Association of Criminal Defense Lawyers. The 19-page ruling stemmed from Dickson’s guilty plea in 2000 to charges of unlawful imprisonment based on a complaint filed by his then-girlfriend. Dickson is a Jamaican citizen who came to the United States in 1986 when he was 6 years old. He is a permanent U.S. resident, and the woman who filed the complaint is now his wife. She and their son are U.S. citizens. According to part of Dickson’s pre-sentence report, which contained a factual narrative prepared by a probation officer, Dickson apparently bound his then-girlfriend and forced her to ride in a car with him. Such a crime, the BIA determined, constituted an aggravated felony requiring his removal under the Immigration and Nationality Act. The BIA relied on the factual narrative to determine the nature of the crime, and that prompted the 2nd Circuit to vacate the removal order. DIVISIBLE CRIME In its analysis, the court first found that the BIA properly determined first-degree unlawful imprisonment was a so-called divisible crime, meaning the agency was permitted to review Dickson’s record to determine whether the conduct amounted to an aggravated felony — a “removable” crime under federal law. Under the Immigration and Nationality Act, an aggravated felony requiring removal is a crime of violence — an offense involving the use or threat of physical force, or the substantial risk of physical force — punishable by at least one year in prison. The 2nd Circuit then found that the BIA fell short in its review because it relied on the pre-sentence report prepared by a probation officer. Sotomayor said the report was based on interviews with prosecuting attorneys, police officers and law enforcement agents, and that this was “not a highly reliable basis for a decision of such importance as deportation.” The appeals court said that during Dickson’s removal proceeding, the INS attorney had attached to her memorandum of law his pre-sentence report for his state criminal conviction. The immigration judge referred to the facts in the report and ultimately decided that Dickson’s conviction was an aggravated felony. “[W]e see no reason why the conviction record should be deemed to include inherently unreliable narratives based on hearsay, which may well be inaccurate,” the decision stated. The appeals court ruling noted the “ready availability” of other documents to show Dickson’s record of conviction, including the judgment of conviction and the plea colloquy transcript. The 2nd Circuit then remanded the case to the BIA to determine — based on such additional information — whether Dickson committed an aggravated felony requiring his deportation. George Terezakis, a solo practitioner in Mineola, N.Y., represented Dickson. Assistant U.S. Attorney Rebecca C. Martin represented the government.

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