quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 Warning: “Offering to sell” is a bad plea for an undocumented person in one crucial way: it will provide the government with ‘reason to believe’ that the person is or has helped a drug trafficker, which in turn will make it almost impossible for the person ever to obtain lawful immigration status. A plea to the entire offense in the disjunctive, which includes transportation, does not necessarily establish this. A very few immigration options remain available to a person inadmissible based on ‘reason to believe;’ see discussion below at part 5, and at § 3.10. 2. Forged or fraudulent prescriptions; Cultivation Although it does not involve trafficking, a California conviction for obtaining a controlled substance by a forged or fraudulent prescription may be an aggravated felony because it is analogous to the federal felony offense of obtaining a controlled substance by fraud under 21 USC § 843(a)(3) (acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge). See discussion of federal analogues and the felony/misdemeanor rule at Part II. A far better plea is simple possession or a straight fraud or forgery offense. A conviction for any forgery offense where a one-year sentence is imposed is an aggravated felony under 8 USC § 1101(a)(43)(R). Likewise, California Health & Safety Code § 11358, cultivation of marijuana, is categorically an aggravated felony under 8 USC § 1101(a)(43)(B) as an analogue to 21 USC § 841(b)(1)(D). 124 3. Post-conviction Relief Relief that eliminates a conviction not based on legal error—such as “rehabilitative” withdrawal of plea under DEJ, Prop 36 (PC § 1210.1) or PC § 1203.4—will not eliminate any of the above convictions for immigration purposes. It will only work on a first conviction for simple possession, or a less serious offense with no federal analogue. See discussion of Lujan- Armendariz v. INS in Part II, supra. Vacation of judgment for cause will eliminate these convictions so that the person no longer will have an aggravated felony or be deportable based on the conviction. See writings by Norton Tooby on obtaining post-conviction relief at § N.17, at www.nortontooby.com. The person still might remain inadmissible, however, if the record in the case gives immigration authorities “reason to believe” that the person may ever have been or assisted a drug trafficker. See “Inadmissible” below. 4. Case Examples • Dan is arrested after a hand-to-hand sale. His defender bargains to plead to “offer to transport.” He has avoided an aggravated felony conviction, although he is still deportable or inadmissible for a drug conviction. (For information on creating a record, see § N.3, supra, or in more depth § 2.11 of Defending Immigrants in the Ninth Circuit.) 124 United States v. Reveles-Espinoza, 522 F.3d 1044 (9 th Cir. 2008). N-80 Immigrant Legal Resource Center
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