quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
Counsel should assume that P.C. § 272 may be charged as a crime of child abuse,
although this should be fought. Like § 273a(b), the statute does not require that harm occurred,
even to the child’s morals, but rather that the adult acted in a way that could tend to encourage
this. Counsel should plead to this type of action, and not to actually causing harm.
5. Conviction of certain offenses against a victim under the age of 18 will act as a bar to a
U.S. citizen or permanent resident being able to file a family visa petition for an
immigrant family member.
A U.S. citizen or permanent resident who is convicted of sexual conduct or solicitation,
kidnapping, or false imprisonment where the victim is under age 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.
D. Conviction for Stalking
Assume Calif. P.C. § 646.9 is a deportable “stalking” offense. A conviction for the
undefined term “stalking” triggers deportability if received after admission and after September
30, 1996. Defense counsel should conservatively assume that Calif. P.C. § 646.9 is a deportable
offense under this ground.
Section 646.9 as an aggravated felony. A “crime of violence” is an aggravated felony if
a sentence of a year or more has been imposed. To absolutely prevent a conviction under §
646.9 from being classed as an aggravated felony, counsel should obtain a sentence imposed of
364 days or less, for any one count. See §N.4 Sentence Solutions.
If that is not possible, counsel still may be able to avoid an aggravated felony by pleading
to “harassing” under § 646.9 with a vague record of conviction, or if this is the only offense that
would cause deportability, by pleading to harassing or following. The Ninth Circuit found that §
646.9 is divisible as a crime of violence. The statute penalizes following or harassing, and
harassing can be committed, e.g., through the mail from hundreds of miles away, which is not a
crime of violence. 161 If the information in the record of conviction shows that the harassing
conduct does come within 18 USC § 16, however, the offense will be held a crime of violence,
and will be an aggravated felony if a sentence of at least a year is imposed. (It also will be held a
deportable crime of domestic violence, but since one must assume that any § 646.9 conviction
already would be held a deportable stalking offense, that is not strategically important.)
161 Malta-Espinoza v. Gonzales 478 F.3d 1080, 1083 (9th Cir 2007) (“Harassing can involve conduct of which it is
impossible to say that there is a substantial risk of applying physical force to the person or property of another, as §
16(b) requires.”) The IJ’s finding below that the offense was deportable as “stalking” under 8 USC § 1227(a)
(2)(E)(i) did not go up on appeal. Id. at 1081. This decision reversed Matter of Malta, 23 I&N Dec. 656 (BIA 2004).
Immigrant Legal Resource Center N-101