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 />
§ N.10 Sex Offenses:<br />
Rape, Sexual Conduct with a Minor, Prostitution<br />
(For more in<strong>for</strong>mation, see Defending Immigrants in the Ninth Circuit, Chapter 9, §§ 9.28, 9.32,<br />
www.ilrc.org/criminal.php)<br />
A. The Aggravated Felony “Rape”<br />
B. The Aggravated Felony “Sexual Abuse of a Minor” <strong>and</strong> Other Immigration Consequences of Sexual<br />
Conduct with a Minor<br />
C. Prostitution Offenses<br />
Warning <strong>for</strong> U.S. citizen or permanent resident defendants: A citizen or permanent<br />
resident faces a serious penalty <strong>for</strong> conviction of sexual conduct or solicitation, kidnapping,<br />
or false imprisonment of a victim who is under the age of 18. The citizen or resident may be<br />
barred from filing a family visa petition to get lawful <strong>immigration</strong> status <strong>for</strong> a close relative<br />
in the future. See further discussion of the Adam Walsh Act at Note 11, infra.<br />
A. The Aggravated Felony “Rape”<br />
Conviction of committing sexual intercourse obtained by <strong>for</strong>ce or serious threat will be<br />
held to be an aggravated felony as rape, regardless of sentence imposed. This includes<br />
conviction of rape while the victim was intoxicated, under Calif. P.C. § 261. 162 The Ninth<br />
Circuit found that third degree rape under a Washington statute that lacks a <strong>for</strong>cible compulsion<br />
requirement, where the victim made clear lack of consent, comes within the generic,<br />
contemporary meaning of “rape” <strong>and</strong> is an aggravated felony. 163<br />
A conviction <strong>for</strong> sexual battery under P.C. § 243.4 should not be held to constitute rape,<br />
but it has other <strong>immigration</strong> consequences. It is a crime involving moral turpitude. As a felony,<br />
it is an automatic crime of violence 164 <strong>and</strong> there<strong>for</strong>e is an aggravated felony if a sentence of a<br />
year or more is imposed, <strong>and</strong> a crime of domestic violence regardless of sentence if the<br />
defendant <strong>and</strong> victim share a specially defined domestic relationship. As a misdemeanor it is<br />
divisible as a crime of violence. 165<br />
162 Cali<strong>for</strong>nia Penal Code § 261 <strong>and</strong> 262 define rape as sexual intercourse obtained by <strong>for</strong>ce, threat, intoxication, or<br />
other circumstances.<br />
163 United States v. Yanez-Saucedo, 295 F.3d 991(9 th Cir. 2002).<br />
164 Lisbey v. Gonzales, 420 F.3d 930, 933 (9th Cir. 2005)(holding felony Calif. PC §243.4(a) is a crime of violence<br />
under 18 USC §16(b) because it contains the inherent risk that <strong>for</strong>ce will be used).<br />
165 United States v. Lopez-Montanez, 421 F.3d 926, 928 (9th Cir. 2005) (misdemeanor PC §243.4 is not a crime of<br />
violence under a st<strong>and</strong>ard identical to 18 USC §16(a); since the restraint is not required to be effected by <strong>for</strong>ce, it<br />
does not have use of <strong>for</strong>ce as an element).<br />
N-102 Immigrant Legal Resource Center