quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
Second, a felony conviction also will be held a crime of violence under the more broadly
defined § 16(b), if “by its nature, [it] involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the offense.” Note that
the “risk” presented by the offense must be that violent force will be used intentionally, and not
just that an injury might occur. Reckless infliction of injury, for example by reckless driving or
child endangerment, is not a crime of violence. 134 The test is whether it involves recklessly
creating a situation where it is likely that violence will ensue.
Criminal defense counsel should act conservatively and certainly attempt to plead to a
misdemeanor, or reduce a wobbler offense to a misdemeanor, where this is possible.
Offenses that will or might be held crimes of violence. Felony burglary of a dwelling
is held a crime of violence under § 16(b). The offense does not have as an element the intent to
use force—it can be committed by a person walking through an unlocked door and removing
articles—but it carries the inherent risk that violence will ensue if the resident and the burglar
meet during commission of the offense. 135 Felony sexual battery under P.C. § 243.4 is a
categorical crime of violence under § 16(b), because the situation contains the inherent potential
for violence. 136 Felony or misdemeanor corporal injury under P.C. § 273.5 is a crime of
violence and a crime of domestic violence (although it is not categorically a crime involving
moral turpitude; see below). Felony or misdemeanor assault under P.C. § 245(a) is a crime of
violence 137 (although it is not categorically a crime involving moral turpitude; see below).
Offenses that will or might not be held crimes of violence. Nonviolently persuading
someone not to file a police report under Calif. PC § 136.1(b), a felony, should not be held a
crime of violence. This is a good immigration plea, although a dangerous plea in terms of
criminal consequences. This is a strike, and may be a useful option where immigration impact is
paramount concern and counsel needs a substitute plea for a serious charge. There is a strong
argument that felony false imprisonment is not a crime of violence if it is accomplished by fraud
or deceit as opposed to force or threat. 138 Burglary of a vehicle does not create an inherently
violent situation like that of burglary of a dwelling, since it lacks the possibility that the owner
will surprise the burglar. 139
134 See Leocal, supra; Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc).
135 See, e.g., United States v. Becker, 919 F.2d 568 (9 th Cir. 1990).
136 Lisbey v. Gonzales, 420 F.3d 930, 933-934 (9th Cir. 2005) (felony conviction of Cal. Penal Code, § 243.4(a) is
categorically a crime of violence under 18 USC § 16(b)).
137 United States v. Grajeda, 581 F.3d 1186, 1190 (9th Cir. Cal. 2009) (P.C. § 245 meets the definition in USSG §
2L1.2, which is identical to 18 USC § 16(a)).
138 The Supreme Court has recently reaffirmed that the generic crime of violence, even where the threat is only that
injury might occur, rather than that force must be used, must itself involve purposeful, violent and aggressive
conduct. Chambers v. United States, 129 S. Ct. 687 (2009) (failing to report for weekend confinement under 720
ILCS 5/31-6(a) (2008) is not a crime of violence) and Begay v. United States, 128 S. Ct. 1581 (2008) (driving under
the influence).
139 Ye v. INS, 214 F.3d 1128, 1134 (9th Cir. 2000).
Immigrant Legal Resource Center N-91