quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 § N.10 Sex Offenses: Rape, Sexual Conduct with a Minor, Prostitution (For more information, see Defending Immigrants in the Ninth Circuit, Chapter 9, §§ 9.28, 9.32, www.ilrc.org/criminal.php) A. The Aggravated Felony “Rape” B. The Aggravated Felony “Sexual Abuse of a Minor” and Other Immigration Consequences of Sexual Conduct with a Minor C. Prostitution Offenses Warning for U.S. citizen or permanent resident defendants: A citizen or permanent resident faces a serious penalty for conviction of sexual conduct or solicitation, kidnapping, or false imprisonment of a victim who is under the age of 18. The citizen or resident 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. A. The Aggravated Felony “Rape” Conviction of committing sexual intercourse obtained by force or serious threat will be held to be an aggravated felony as rape, regardless of sentence imposed. This includes conviction of rape while the victim was intoxicated, under Calif. P.C. § 261. 162 The Ninth Circuit found that third degree rape under a Washington statute that lacks a forcible compulsion requirement, where the victim made clear lack of consent, comes within the generic, contemporary meaning of “rape” and is an aggravated felony. 163 A conviction for sexual battery under P.C. § 243.4 should not be held to constitute rape, but it has other immigration consequences. It is a crime involving moral turpitude. As a felony, it is an automatic crime of violence 164 and therefore is an aggravated felony if a sentence of a year or more is imposed, and a crime of domestic violence regardless of sentence if the defendant and victim share a specially defined domestic relationship. As a misdemeanor it is divisible as a crime of violence. 165 162 California Penal Code § 261 and 262 define rape as sexual intercourse obtained by force, threat, intoxication, or other circumstances. 163 United States v. Yanez-Saucedo, 295 F.3d 991(9 th Cir. 2002). 164 Lisbey v. Gonzales, 420 F.3d 930, 933 (9th Cir. 2005)(holding felony Calif. PC §243.4(a) is a crime of violence under 18 USC §16(b) because it contains the inherent risk that force will be used). 165 United States v. Lopez-Montanez, 421 F.3d 926, 928 (9th Cir. 2005) (misdemeanor PC §243.4 is not a crime of violence under a standard identical to 18 USC §16(a); since the restraint is not required to be effected by force, it does not have use of force as an element). N-102 Immigrant Legal Resource Center
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