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