Curtis Fraser was initially granted lawful permanent residence through his U.S.-citizen wife.  Subsequently, the Department of Homeland Security (DHS) sought to strip him of his residency, arguing that he had previously been convicted in Canada of possession of cocaine for trafficking.  To support this allegation, the DHS submitted a Trial Disposition and an Information to the Court.  The Information identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition referred to an attached indictment on which Fraser had been arraigned, but the Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The government did not produce a document with the title “Indictment.” After a continuance, the government addressed this deficiency by providing the Immigration Judge (IJ) with a copy of the section of the Canadian Criminal Code that defines “indictment” to include an “information.”

Fraser argued that these records were insufficient to prove he had been convicted of an offense that rendered him inadmissible.  First, the Information was filed in Saskatchewan.  The Trial Disposition, in contrast, was filed in Manitoba.  Thus, Fraser argued there was not sufficient evidence to support the conclusion that the two documents referred to the same case.  Second, the Trial Disposition referred to an “indictment,” and the DHS only provided the Information. Fraser argued that without the referenced indictment, the Court could not know what offense he actually pleaded guilty to, since the Trial Disposition was silent on this issue.  Finally, the Information was the only document presented to the IJ that specified cocaine as the drug involved in the conviction. Had he been convicted of simple possession of marijuana, Fraser argued, he would be eligible for a waiver. 

Fraser also argued the IJ improperly relied on a police record and pardon documents to determine whether he had been convicted of an offense that made him inadmissible.  Fraser asserted that these additional documents were not “documents or records” the Immigration and Nationality Act identifies as ones that “shall constitute proof of a criminal conviction.”  The IJ did consider an uncertified police record, which contained Fraser’s name and identified a conviction for possession of a narcotic for the purpose of trafficking under the Narcotic Control Act. The IJ also considered documentation that showed Fraser received a pardon in Canada for a conviction for breach of the Narcotic Control Act with the same date and case number as the Information and the Trial Disposition.

The First Circuit approved of the IJ's review of these extra documents, finding that in combination, they established by clear and convincing evidence that Fraser had been convicted of an offense involving cocaine.  This use of uncertified police reports and other documents is troubling, and seems contrary to the Supreme Court's Taylor approach, which limits the documents a Court may consider to determine the immigration consequences of a conviction.  

The full text of Fraser v. Lynch can be found here: