quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
establish that the plea was pursuant to these Family Code sections. 158 The dissenting
judge in Alanis-Alvarado was open to considering these arguments. Counsel can try pleading
to P.C. § 273.6 pursuant to other provisions in the section (elder abuse, employee abuse,
protective orders not specifically tied to domestic violence), or if permitted, simply to P.C. §
273.6.
A danger with this approach is that there is no case law defining which evidence ICE might be
permitted to use to show that the offense in fact constituted a violation of a domestic violence
protective order. The Court in Alanis-Alvarado stated that the categorical approach applies to
this question, but this might be re-thought if the categorical approach is found not to apply to a
deportable crime of domestic violence, as discussed in Part A, supra. Almost all of the possible
means of violating these court orders relate to protection against violence and harassment.
(However, a violation of these orders is not in itself a categorical crime of violence, so that the
offense should not automatically be held a deportable crime of domestic violence. 159 ).
There is also the danger that the offense could be held to constitute stalking, a separate basis for
deportability. See Part D.
C. Crime of Child Abuse, Neglect or Abandonment
Warning for U.S. citizen or permanent resident defendants: A U.S. citizen or permanent
resident who is convicted of sexual conduct or solicitation, kidnapping, or false
imprisonment where the victim is under the age of 18 faces a serious penalty: he or she may
be barred from filing a family visa petition to get lawful immigration status for a close
relative in the future. See further discussion of the Adam Walsh Act at Note 11, infra.
1. The Board of Immigration Appeals’ Definition of a Crime of Child Abuse or Neglect
A noncitizen is deportable if, after admission and after September 30, 1996, he or she is
convicted of a “crime of child abuse, child neglect, or child abandonment.” 160
158
Why is “as charged in” important? As discussed in § N. 3, supra, in United States v. Vidal, 504 F.3d 1072,
1087 (9 th Cir. 2007)(en banc) the court held that because a California criminal charge can be amended orally up until
the plea is taken, a plea to, e.g., “Count I -- V.C. § 10851” is not an admission of the facts alleged in that Count
unless the plea contains the critical phrase “as charged in” Count I. Instead, it is only a plea to § 10851 in general.
Why is it important to take a West plea? After Vidal was published, another en banc opinion appeared to contradict
the holding, without explanation. Vidal concerned a West plea, and while this did not appear to be a basis for the “as
charged in” rule, some immigration judges are holding that Vidal only applies to West pleas. Therefore a West plea,
although perhaps legally unnecessary, is helpful in immigration court.
159 See, e.g., discussion in Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9 th Cir. 2007), holding that harassing or
following, with threats, under Calif. PC § 646.9(b) is not a categorical “crime of violence” because the full range of
conduct covered by the harassment portion of the statute includes crimes that can be committed at a distance by
telephone or mail and where there is no substantial risk of violence.
160 INA § 237(a)(2)(E)(i), 8 USC § 1227(a)(2)(E)(i).
N-98 Immigrant Legal Resource Center