BIA (unpub.) on Alford Plea: Matter of Fraczek

"Where an alien was convicted by means of a plea, an Immigration Judge conducting a modified categorical inquiry is "generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented" or which was "confirmed by the defendant." Shepard v. United States, 544 U.S. 13, 16, 26 (2005). The record reflects that the respondent pied guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), which permits a defendant to plead guilty without a specific admission to facts required to support a conviction (I.J. at 3; Exh. 5 at 5). In accepting the respondent's plea, the state judge summarized the prosecutor's recitation of the facts, but it is not clear that this recitation served as the factual basis for the respondent's conviction (Exh. 5 at 3, 5). The judge acknowledged that the respondent did not necessarily agree with the prosecutor's version of the facts (Exh. 5 at 5). The judge did not make an explicit finding regarding the factual basis of the respondent's conviction and there is no indication in the record that the respondent confirmed or assented to any of the facts alleged by the prosecution, nor was the judge required to find the particular factual basis alleged by the government in order to accept the plea and convict the respondent. Accordingly, we cannot conclude that the respondent's conviction necessarily involved-or that his plea necessarily admitted-facts equating to generic burglary. See Shepard v. United States, supra, at 24; United States v. McMurray, 653 F.3d 367, 378-82 (6th Cir. 2011).  In light of the foregoing, the DHS has not met its burden of demonstrating by clear and convincing evidence that the respondent is removable for having been convicted of an aggravated felony as defined by section 101(a)(43)(U) of the Act, an attempt to commit a burglary offense as defined by section 101(a)(43)(G) of the Act. Additionally, because the record does not clearly establish that the respondent's attempted offense falls within the generic burglary definition, the DHS has not met its burden of demonstrating by clear and convincing evidence that the respondent is removable for having been convicted of an aggravated felony crime of violence as defined by section 101(a)(43)(F) of the Act, or for having been convicted of an attempt to commit such an offense. Accordingly, the respondent's appeal will be sustained and these proceedings will be terminated." - Matter of Fraczek, A030 973 737 (BIA May 9, 2013, unpub.)  [Hats off to Crescenzo DeLuca!  Link courtesy of the Immigrant & Refugee Appellate Center and Ben Winograd.]