quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
Offering to commit a drug offense under the above provisions is a deportable and
inadmissible drug conviction. Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009).
Solicitation to possess a CS, under P.C. § 653f(d), is not a conviction of a deportable
and inadmissible drug offense, nor of an aggravated felony. Mielewczyk, supra at 998.
Similarly, some states such as Arizona and Washington have a “generic” solicitation statute
(solicitation to commit various crimes), and conviction is neither an aggravated felony nor a
deportable drug conviction, even if the crime solicited was drug trafficking. 122
The solicitation offense is not recognized outside of immigration proceedings held in
the Ninth Circuit. Matter of Zorilla-Vidal, 24 I&N Dec. 768 (BIA 2009). If your client is
arrested within the Ninth Circuit, he or she might be detained elsewhere, likely in the Fifth
Circuit, and immigration proceedings might be held there. The same might happen if the client
takes a trip abroad and flies in to a city outside the Ninth Circuit. This is why it is good to have
a back-up strategy.
A better plea for the above offenses is transportation or offering to transport. See
H&S §§ 11352(a), 11360(a), and 11379(a). Transportation for personal use is a deportable and
inadmissible offense but not an aggravated felony. U.S. v. Casarez-Bravo, 181 F.3d 1074, 1077
(9 th Cir. 1999). Unlike solicitation, it could not be held to give the government “reason to
believe” that the person ever had been involved in trafficking, and it should be accepted outside
of the Ninth Circuit. Or, plead to the entire offense in the disjunctive (using “or”).
A plea that does not identify the specific controlled substance involved usually will have
no immigration consequences at all. A plea to § 11379(a) where the specific controlled
substance is not identified is optimal, but a plea to § 11352(a) also should work. See discussion
at C.2, supra.
Consider accessory after the fact and other general safer pleas. See B.2, supra.
Possession for sale of a specific controlled substance is a very bad plea, because this is
a deportable and inadmissible offense and an automatic aggravated felony. Counsel should seek
an alternate plea, including pleading up to an “offering” statute such as H&S § 11379(a). A
California Court of Appeals found that it was ineffective assistance of counsel to fail to advise a
noncitizen to plead up to an “offering” or transportation offense rather than accept a possession
for sale conviction. 123
122 Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999).
123 People v. Bautista, 115 Cal.App.4 th 229 (Cal. App. 6 th Dist. 2004). The court directed the parties to a referee
hearing to determine whether an attorney's failure to properly advise, investigate and defend him by offering to
“plead up” from possession for sale of marijuana to offering to sell, etc. or transportation, which are not aggravated
felonies, constituted ineffective assistance. The court held that if defendant could prove this and prove prejudice
that he would have a persuasive case that his attorney's failures constituted ineffective assistance of counsel. The
referee found for the defendant and the writ was granted. See In re Bautista, H026395 (Ct. App. 6 th Dist. September
22, 2005).
Immigrant Legal Resource Center N-79