quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 Effect of Selected Drug Pleas under Lopez and Carachuri ENDNOTES 1 This chart was prepared by Katherine Brady of the Immigrant Legal Resource Center and updated in July 2010. For further information and resources, go to www.ilrc.org/criminal.php. 2 Lopez v. Gonzales, 127 S.Ct. 625 (2006) held that a single possession conviction is not an aggravated felony because it would not be punishable as a felony in federal court. 3 Carachuri v. Holder, 130 S.Ct. 2577 (June 14, 2010). 4 Where possible, have the record of conviction refer only to “a controlled substance” rather than a specific identified substance such as cocaine. Bargain for an amended complaint or make a written plea agreement to this effect; do not stipulate to a factual basis that identifies the substance. Without specific identification, immigration authorities may not be able to prove that the offense involved a controlled substance as defined under federal law, which has a somewhat different definition than under California and many other state laws. See Ruiz-Vidal v. Gonzales 473 F.3d 1072 (9 th Cir. 2007) (because record of conviction under Calif. H&S §11377 does not ID specific substance, there is no controlled substance conviction for immigration purposes); Matter of Paulus, 11 I&N Dec. 274 (BIA 1965). Note that this defense does not apply to possession of paraphernalia. See footnote below. 5 Lujan-Armendariz v. INS, 222 F.3d 728 (9 th Cir. 2000) (generally will eliminate offense); Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009) (will not if there was a probation violation); De Jesus Melendez v. Gonzales, 503 F.3d 1019, 1026-27 (9th Cir. 2007) (will not if prior pre-plea diversion). 6 See Carachuri v. Holder, supra. See also Matter of Carachuri, 24 I&N Dec. 382 (BIA 2007). 7 The Ninth Circuit found that Arizona possession of drug paraphernalia is a deportable controlled substance offense even without a specific controlled substance identified on the record. See Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000); Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009). The BIA held that it does not apply to presence in a place where drugs are used, either. Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009) 8 Cardenas-Uriarte v. INS, 227 F.3d 1132 (9 th Cir. 2000) (paraphernalia); Nunez-Reyes v. Holder, 602 F.3d 1102 (9 th Cir. 2010) (under the influence, Calif. H&S § 11550(a)). 9 Ariz. Rev. Stat. §13-1002, a “generic” solicitation offense not linked to a specific crime, is not a deportable drug offense. Coronado-Durazo v. INS, 123 F.3d 1322, 1326 (9 th Cir. 1997). In contrats, the Ninth Circuit found that “specific” solicitation to commit a drug offense such as under Calif. H&S § 11352(a) is a deportable drug offense. Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009)). The court opined that Calif. P.C. § 653f(d) is “generic solicitation” and therefore should not be treated as a deportable controlled substance offense. Ibid. 10 United States v. Rivera-Sanchez, 247 F.3d 905 (9 th Cir. 2001)(en banc) (California law); Leyva-Licea v. INS, 187 F.3d 1147 (9 th Cir. 1999) (Ariz. Rev. Stat. §13-1002). 11 See 21 USC §841(b)(4), making this offense a misdemeanor and subject to the FFOA, which is the basis for Lujan; see discussion at Defending Immigrants in the Ninth Circuit, §3.6(C), supra. Counsel should arrange for a finding in the criminal record that the amount of marijuana was small. Immigrant Legal Resource Center N-85
California Quick Reference Chart and Notes February 2010 § N.9: Domestic Violence; Child Abuse; Stalking (For more information, see Defending Immigrants in the Ninth Circuit, Chapter 6, §§ 6.2 and 6.15, www.ilrc.org/criminal.php) A. Conviction of a Crime of Domestic Violence B. Civil or Criminal Court Finding of Violation of a Domestic Violence Protective Order C. Conviction of a Crime of Child Abuse, Neglect or Abandonment D. Conviction of Stalking A noncitizen is deportable under the domestic violence ground if he or she is convicted of (a) a state or federal “crime of domestic violence,” (b) a crime of child abuse, neglect or abandonment, or (c) stalking. The person also is deportable if found in civil or criminal court to have violated certain sections of a domestic violence protective order. 8 USC § 1227(a)(2)(E), INA § 237(a)(2)(E). This deportability ground has an effective date: the convictions or the behavior that is the subject of the finding of violation of the protective order must occur after September 30, 1996 and after the noncitizen was admitted to the United States. A. Conviction of a Crime of Domestic Violence Alert on Domestic Violence Cases: Because of 2009 Supreme Court rulings, it is possible that Ninth Circuit will reconsider past precedent and create a new rule that makes it easier for immigration authorities to prove the “domestic relationship” element in a deportable crime of domestic violence. Please read these materials carefully for advice on how to handle domestic violence cases in light of this possible change. Bottom Line Instructions: A defendant is deportable for conviction of a “crime of domestic violence” based on (a) a conviction of a “crime of violence” that is (b) against a victim with whom he or she has had a certain domestic relationship, defined in the deportation ground. The good news is that in many cases, criminal defense counsel can craft a plea that both satisfies the prosecution and avoids the deportation ground. This section will discuss the following options. a. A plea to an offense that does not meet the technical definition of “crime of violence” is not a conviction of a “crime of domestic violence,” even if it is clear that the defendant and victim had a domestic relationship. See discussion below and Chart for offenses that may not constitute a crime of violence, for example P.C. §§ 243(a), 243(e), 236, and 136.1(b). These require a carefully crafted record of conviction. See Part 2, infra, for further discussion. b. A plea to a “crime of violence” is not a “crime of domestic violence” if (a) the designated victim is someone not protected under the state’s DV laws (e.g., the new boyfriend, a N-86 Immigrant Legal Resource Center
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