Eliceo Hernandez-Martinez v. John Ashcroft, Attorney Gen., 343 F.3d 1075 (9th Cir. 2003). · Go Syfert
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Eliceo Hernandez-Martinez v. John Ashcroft, Attorney Gen., 343 F.3d 1075 (9th Cir. 2003). Cases Citing This Book View Copy Cite
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cited 4× by 3 distinct cases, last quoted 2008 · …the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment at p. 1076 ✓
28 citation events (28 in the last 25 years) across 5 distinct courts.
Strongest positive: Aguilar-Turcios v. Holder (ca9, 2009-09-29)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
cited Cited as authority (rule) Aguilar-Turcios v. Holder
9th Cir. · 2009 · confidence medium
Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003); see also Shepard, 544 U.S. at 20-21 ; Hernandez- Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003).
discussed Cited as authority (rule) Aguilar-Turcios v. Holder (2×)
9th Cir. · 2009 · confidence medium
Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003); see also Shepard, 544 U.S. at 20-21 , 125 S.Ct. 1254 ; Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003).
discussed Cited as authority (rule) Arguelles-Olivares v. Mukasey
5th Cir. · 2009 · confidence medium
Other than for its possible use to prove the existence of a conviction, such a report simply is not a part of the formal record of conviction.” (emphasis in original) (citations omitted)); Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003) (holding that a PSR is “insufficient evidence” to show that an alien’s conviction constitutes an aggravated felony) (citing United States v. Corona- Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en banc)).11 10 Here, the PSR’s “proof” of Arguelles’s 1999 tax year liability amounts to nothing more than an unsourced and unverif…
discussed Cited as authority (rule) Arguelles-Olivares v. Mukasey (2×)
5th Cir. · 2008 · confidence medium
Other than for its possible use to prove the existence of a conviction, such a report simply is not a part of the formal record of conviction.”) (emphasis in original) (citations omitted); Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003) (holding that a PSR is “insufficient evidence” to show that an alien’s conviction constitutes an aggravated felony) (citing United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir.2002) (en banc)).
discussed Cited as authority (rule) Rendon v. Mukasey
9th Cir. · 2008 · confidence medium
Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003); see also 8 U.S.C. § 1229a(c)(3)(B). [9] The administrative record in this case contains both the state charging document and the judgment of the Kansas convic- tion.5 The judgment lists the primary offense of conviction as “POSSESSION OF MARIJUANA WITH INTENT TO SELL.” The charging document alleges that Rendon “unlaw- fully, intentionally, possess[ed] with intent to sell a controlled substance, to-wit: marijuana.” These two documents clearly indicate that Rendon was convicted of possession with intent to sell a contr…
cited Cited as authority (rule) Rendon v. Mukasey
9th Cir. · 2008 · confidence medium
Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003); see also 8 U.S.C. § 1229a(c)(3)(B).
cited Cited as authority (rule) Rendon v. Mukasey
9th Cir. · 2008 · confidence medium
Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003); see also 8 U.S.C. § 1229a(c)(3)(B).
discussed Cited as authority (rule) Rendon v. Mukasey
9th Cir. · 2008 · confidence medium
Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003); see also 8 U.S.C. § 1229a(c)(3)(B). [9] The administrative record in this case contains both the state charging document and the judgment of the Kansas convic- tion.5 The judgment lists the primary offense of conviction as “POSSESSION OF MARIJUANA WITH INTENT TO SELL.” The charging document alleges that Rendon “unlaw- fully, intentionally, possess[ed] with intent to sell a controlled substance, to-wit: marijuana.” These two documents clearly indicate that Rendon was convicted of possession with intent to sell a contr…
discussed Cited as authority (rule) Morales v. Gonzales
9th Cir. · 2007 · confidence medium
We have previously defined what constitutes the record of conviction, stating it “consists of a narrow, specified set of documents that includes ‘the state charging document, a signed plea agreement, jury instructions, guilty pleas, tran- scripts of a plea proceeding and the judgment.” Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir. 2004) (quoting Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003)).
discussed Cited as authority (rule) Nancy Arabillas Morales v. Alberto R. Gonzales, Attorney General
9th Cir. · 2007 · confidence medium
We have previously defined what constitutes the record of conviction, stating it “consists of a narrow, specified set of documents that includes ‘the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment.’ ” Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.2004) (quoting Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003)).
discussed Cited as authority (rule) Nancy Arabillas Morales v. Alberto R. Gonzales, Attorney General
9th Cir. · 2007 · confidence medium
We have previously defined what constitutes the record of conviction, stating it “consists of a narrow, specified set of documents that includes ‘the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment.’ ” Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.2004) (quoting Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003)).
discussed Cited as authority (rule) Morales v. Gonzales
9th Cir. · 2007 · confidence medium
We have previously defined what constitutes the record of conviction, stating it “consists of a narrow, specified set of documents that includes ‘the state charging document, a signed plea agreement, jury instructions, guilty pleas, tran- scripts of a plea proceeding and the judgment.” Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir. 2004) (quoting Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003)).
discussed Cited as authority (rule) Fernandez-Ruiz v. Gonzales (2×)
9th Cir. · 2006 · confidence medium
Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003).
discussed Cited as authority (rule) Conteh v. Gonzales (2×) also: Cited "see"
1st Cir. · 2006 · confidence medium
See Dickson, 346 F.3d at 53 (concluding that the BIA may not consider the narrative statement in a PSI Report as evidence of the facts underlying a putative predicate offense); Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003) (holding that a PSI Report is insufficient to prove that an alien’s conviction embodied every element of an enumerated of *59 fense (citing United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir.2002) (en banc))).
discussed Cited as authority (rule) SANUDO
unknown court · 2006 · confidence medium
Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076-77 (9th Cir. 2003). 3 To qualify as a “crime of violence” under 18 U.S.C. § 16 (a), an offense must either have the use, attempted use, or threatened use of physical force against the person or property of another as an element; to qualify under § 16(b), it must be a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may (continued...) 973 Cite as 23 I&N Dec. 968 (BIA 2006) Interim Decision #3537 Circuit, in whose jurisdiction this proceeding arises, has recently issued …
discussed Cited as authority (rule) Notash v. Gonzales
9th Cir. · 2005 · confidence medium
Those documents include “ ‘the state charging document, a signed plea agree- ment, jury instructions, guilty pleas, transcripts of a plea pro- ceeding and the judgment.’ ” Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir. 2004) (quoting Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003)); cf. Shepard v. United States, 125 S. Ct. 1254, 1263 (2005) (holding that a sentencing court may look only to the charging document, the plea agreement, and the plea colloquy in determining whether a guilty plea to burglary constituted a predicate offense for purposes of the Armed Ca…
discussed Cited as authority (rule) Kykhosro Notash v. Alberto R. Gonzales, Attorney General
9th Cir. · 2005 · confidence medium
Those documents include “‘the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment.’ ” Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.2004) (quoting Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003)); cf. Shepard v. United States, — U.S. -, -, 125 S.Ct. 1254, 1263 , 161 L.Ed.2d 205 (2005) (holding that a sentencing court may look only to the charging document, the plea agreement, and the plea colloquy in determining whether a guilty plea to burglary constituted a predicate offense for…
discussed Cited as authority (rule) Corona-Garcia v. Ashcroft
10th Cir. · 2005 · confidence medium
Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003); see also United States v. Venegas-Ornelas, 348 F.3d 1273, 1276 (10th Cir.2003), cert. denied,- U.S. -, 125 S.Ct. 494 , 160 L.Ed.2d 370 (2004).
discussed Cited as authority (rule) Susana Ferreira v. John Ashcroft, Attorney General Ronald J. Smith
9th Cir. · 2004 · confidence medium
The record of conviction consists of a narrow, specified set of documents that includes “the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment.” Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003).
Retrieving the full opinion text from the archive…
Eliceo HERNANDEZ-MARTINEZ, Petitioner,
v.
John ASHCROFT, Attorney General, Respondent
02-70048, INS A92-440-540.
Court of Appeals for the Ninth Circuit.
Sep 11, 2003.
343 F.3d 1075
2003 U.S. App. LEXIS 18794
Judy Flanagan, Phoenix, AZ, for Petitioner., Regional Counsel, Western Region Immigration & Naturalization Service, La-guna Niguel, CA, Ronald E. LeFevre, Chief Legal Officer, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, District Director, Immigration & Naturalization Service, Phoenix, AZ, Anh-Thu P. Mai, Office of Immigration Litigation, Civil Division, Washington, DC, Shelly R. Goad, DOJ-U.S. Department of Justice, Civil Div./Office of Immigration Lit., Ben Franklin, Washington, DC, for Respondent.
Noonan, Tashima, Law.
Cited by 25 opinions  |  Published

ORDER

John Ashcroft, Attorney General of the United States, petitions for rehearing by the panel, asking the panel to “clarify its decision and specifically remand the case to the Board to determine under which statutory subsection of the Arizona statute Hernandez-Martinez was convicted and whether a conviction under that subsection subjects him to remand.” In support of this request, Ashcroft cites to the Administrative Record.

We have accordingly examined the portions of the A.R. cited. The first, pages 73-74, sets out the admission of Hernandez that he has received the charging document of the service and that he admits removability for being present without admission. The charging document of the service at A.R. 298 is itself referenced. The next citation is to A.R. 95-110. Pages 95-101 are the record of his sentencing to probation by the Superior Court of Mari-copa County, Arizona for the offense stated in our opinion. Pages 102-110 contain the Presentence Report in that case.

In several cases cited by Ashcroft we have noted the documents that the Board of Immigration Appeals is free to consider in determining whether a conviction under a divisible statute constitutes an aggravated felony. The documents include the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment. Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003). We have specifically held that a Presentence Report is insufficient evidence. United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir.2002) (en banc). Four days after Corona-Sanchez was filed, an opinion of this court was filed permitting use of a Presentence Report Abreu-Reyes v. INS, 292 F.3d 1029, 1032 (9th Cir.2002). The opinion failed to take note of the en banc decision and was pretty clearly drafted and sent to the printer before Corona-Sanchez came down. The opinion was not withdrawn or modified, providing what was delicately called “noticeable tension in our recent caselaw.” Chang v. INS, 307 F.3d 1185, 1191 (9th Cir.2002). That tension has been resolved by the enumeration in Huerta-Guevara, 321 F.3d at 888 of the usable documents along with the explicit repetition of the rule of Corona-Sanchez that a Presentence Report is insufficient.

The only portion of the A.R. that supports Ashcroft’s petition for rehearing is the Presentence Report at A.R. 102-110. The Presentence Report was not men[*1077] tioned by the Board of Immigration Appeals in its decision. The Presentence Report was not mentioned by Ashcroft in the brief he filed responding to the petitioner in this case. To seek rehearing on a basis not used by the Board or brought to this court’s attention on appeal is unusual and irregular. Huertar-Gnevam, ruling out the Presentence Report as sufficient evidence of facts of a divisible offense, is known to Ashcroft as it is cited by him in his petition for rehearing. His petition asks us to depart from binding circuit precedent. He makes no request to refer the question to a new en banc court. Accordingly, the Petition for Rehearing is DENIED.