concurring:
I concur in the result. I respectfully disagree, though, with the majority’s wholesale rejection of deference to the Attorney General’s opinion. We owe deference to the agency charged with construing the statute. The Attorney General’s opinion, reasonably construed, is not arbitrary or capricious. We need not decide in this case whether to accept or reject the opinion, because it was misapplied.
The statute at issue in this case says that an admitted alien shall be removed if the alien has been “convicted of two or more crimes involving moral turpitude.”1 We held in Marmolejo-Campos v. Holder2 that “moral turpitude” was “perhaps the quintessential example of an ambiguous phrase,”3 and that Chevron and Skidmore deference applied to BIA determinations “once the elements of the petitioner’s offense are established” to determine whether the particular crime was one of moral turpitude.4 We withheld judgment on the third step in the Attorney General’s Silva-Trevino5 opinion, that Immigration Judges may look beyond the evidence cognizable under Shepard v. United States,6 because the question was not squarely before us.7
The briefing in this case focuses on what we left unanswered in Marmolejo-Cam-pos, the permissibility of going beyond Shepard-cognizable evidence. The petitioner argues that reliance on the police report was mistaken because Silva-Trevino is an impermissible interpretation of the statute, while the government argues *918that it was appropriate because Silvar-Tre-vino was within the interpretive authority of the Attorney General for a statute that the Department of Justice administers.
We should decline both parties’ invitations to rule so much more broadly than this case requires. Silvar-Trevino tells Immigration Judges to look beyond Shepard-cognizable documents, but says nothing about police reports. It tells Immigration Judges that they may look at other evidence “to the extent they deem it necessary and appropriate,” without saying when that might or might not be so.8 This “necessary and [or] appropriate” phrase is considerably narrower than the word “any” might be, because it requires necessity and appropriateness.
Congress commands that in removal proceedings, deportability must be proved “by clear and convincing evidence,” and the deportability decision must be based on “reasonable, substantial, and probative evidence.”9 If we were to read Silvar-Trevino to authorize Immigration Judges to rely upon evidence that was not “reasonable, substantial, and probative,” then Silvar-Trevino would have to be rejected as arbitrary and capricious.10 To be admissible under the statute, “necessary” and “appropriate” evidence in the Silva-Trevino phrasing also has to be “reasonable, substantial, and probative.” The Attorney General’s opinion in Silvar-Trevino must be, and doubtless was intended to be, limited by the statutory “reasonable, substantial, and probative” requirement.
We need decide only whether police reports are “reasonable, substantial, and probative evidence” that can prove by “clear and convincing evidence” that Oli-vas — Motta committed a crime involving moral turpitude.11 We need not decide more generally whether Silva-Trevino merits Chevron deference.
It has long been clear that police reports are not generally “reasonable, substantial, and probative evidence” of what someone did. Despite their liberality toward public and business records, the Federal Rules of Evidence expressly make an exception, excluding police reports as evidence in criminal cases.12 In Shepard v. United States,13 the government had argued that when applying the modified categorical approach, police reports ought to be considered in the limited context where they had been submitted to a local court to obtain a criminal complaint.14 The Supreme Court characterized the government’s argument as a “menace to Taylor,”15 far too expansive.16 And that would not be as expansive as what the government seeks here, use of police reports where the record does not show that any court ever relied on them to issue a complaint.
A police report is a device useful for many purposes, such as recording a contemporaneous recollection of what the offi*919cers observed and what they understood people to have told them. A police report usefully guides further investigation. The report helps prosecutors and defense lawyers locate useful witnesses. But police reports are not especially useful instruments for finding out what persons charged actually did. All the defects of hearsay, double hearsay, and triple hearsay apply, since people may speak to the police despite lack of personal knowledge and lack of adequate observation, may be misunderstood, and what they say may be misreported.17 People sometimes lie or exaggerate when they talk to the police.
If Silva-Trevino said (which it does not) that Immigration Judges should rest their decisions on what police reports say, we would properly hold that Silvar-Trevino was a mistaken interpretation of the statute requiring “reasonable, substantial, and probative” evidence.18 Since police reports are not “reasonable, substantial, and probative” they are not “appropriate” under Silvar-Trevino. Even if the statutory standard were more liberal, the BIA needs “clear and convincing” evidence for removal, and something as potentially inaccurate as a police report cannot be “clear and convincing” evidence.19 We need not reach whether Silvctr-Trevino merits Chevron deference, because Silvar-Trevino does not say or imply that the Immigration Judge and the BIA may rely on police reports to determine whether a crime was one of moral turpitude. The BIA’s reliance on the police report in this case was mistaken. I would remand for that reason, and would not address whether Silvctr-Trevino merits Chevron deference.
Nothing since Marmolejo-Campos came down in 2009 has changed the fact that “moral turpitude” is “perhaps the quintessential example of an ambiguous phrase.”20 The majority concedes that the term is “famously ambiguous.” At one time, the phrase was more understandable, and seemed to refer to crimes involving sex or fraud, but no longer. Given the inherent ambiguity in the statute, the Attorney General was justified in laying out a uniform standard for Immigration Judges to apply when determining whether an alien was convicted of a crime involving moral turpitude.
The majority places more weight on the phrase “convicted of’ than it can bear. The phrase could mean, as the majority asserts, that we may not look to conduct that an alien committed. Though we so held in Tokatly v. Ashcroft,21 the ambiguity of the phrase supports a need for deference to the subsequent interpretation by the administrative agency.
Tokatly did not deal with a situation where the Attorney General has issued a decision directly on point. There was no such contrary agency view to which we could defer. When Tokatly was decided, we were in agreement with the BIA’s position when we expressed our fear of “mini-trials.”22 The agency’s position has changed. The Attorney General has determined that looking beyond the record of conviction is not an unmanageable bur*920den. We emphasized in Tokatly that our position was the same as the BIA’s.23 And Nijhawan v. Holder24 forecloses any argument that the phrase “convicted of’ in a removal statute always limits the inquiry to the modified categorical approach. The Supreme Court held in Nijhawan that when determining whether an alien has been “convicted of an aggravated felony” for purposes of 8 U.S.C. § 1227(a) (2) (A) (iii), “the ‘fraud and deceit’ provision before us calls for a ‘circumstance-specific,’ not a ‘categorical,’ interpretation.” 25 The Court rejected the petitioner’s call for a modified categorical approach, because it did “not agree that fairness requires the evidentiary limitations he propose[d].”26 The Court feared that the modified categorical approach might “prove impractical insofar as it requires obtaining from a jury a special verdict on a fact that ... is not an element of the offense.”27
No statutory list of “crimes involving moral turpitude” exists. The Attorney General has propounded a workable definition. The Attorney General has apparently concluded that, just as some felonies are “aggravated” because of the circumstances under which they are committed, some crimes “involve moral turpitude” because of the circumstances under which they are committed. This conclusion does not conflict with Nijhawan.
Because the statute is ambiguous and the Attorney General’s construction is reasonable, I would join the Seventh and Eighth Circuits in holding that we should defer to Silvar-Trevino.28 This would not give Immigration Judges unfettered discretion. They are still limited by statute to “reasonable, substantial, and probative” evidence,29 and the BIA still needs “clear and convincing” evidence for removal.30
. 8 U.S.C. § 1227(a)(2)(A)(ii).
. Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009) (en banc).
. Id. at 909.
. Id. at 911.
. In re Silva-Trevino, 24 I. & N. Dec. 687 (A.G.2008).
. Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
. Marmolejo-Campos, 558 F.3d at 907 n. 6.
. In re Silva-Trevino, 24 I. & N. Dec. at 690.
. 8 U.S.C. § 1229a(c)(3)(A).
. 5 U.S.C. § 706(2)(A); see Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
. 8 U.S.C. § 1229a(c)(3)(A).
. Fed.R.Evid. 803(8)(A)(ii).
. Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
. Id. at 21, 125 S.Ct. 1254.
. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).
. Shepard, 544 U.S. at 22, 125 S.Ct. 1254; see also In re Milian-Dubon, 25 I. & N. Dec. 197, 197 (2010) (explaining that "a police report, standing alone, is not part of the record of conviction”).
. See Prudencio v. Holder, 669 F.3d 472, 483-84 (4th Cir.2012) (“[P]olice reports ... often contain little more than unsworn witness statements and initial impressions.... Further, because thefy] are generated early in an investigation, they do not account for later events, such as witness recantations, amendments, or corrections.”).
. 8 U.S.C. § 1229a(c)(3)(A).
. Id.
. Marmolejo-Campos, 558 F.3d at 909.
. Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).
. Id. at 621.
. Id. at 623 ("Indeed the IJ's examination of the victim provides an example of the very fact-finding process that both the courts and the Board have deemed inappropriate and sought to avoid by strict adherence to the categorical and modified categorical methodology.”); id. ("We decline to modify this court's — and the Board’s — strict rules against extra-record of conviction evidence....”).
. Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009).
. Id. at 32, 36, 129 S.Ct. 2294.
. Id. at 41, 129 S.Ct. 2294.
. Id. at 42, 129 S.Ct. 2294.
. See Bobadilla v. Holder, 679 F.3d 1052 (8th Cir.2012); Mata-Guerrero v. Holder, 627 F.3d 256 (7th Cir.2010).
. 8 U.S.C. § 1229a(c)(3)(A).
. Id.