quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
b. P.C. § 261.5(d), §§ 286(b)(2), 288a(b)(2), 289(i), sexual conduct with a person
under the age of 15
The Ninth Circuit recently held that a conviction under § 261.5(d) does not automatically
constitute “sexual abuse of a minor.” The Court left open the possibility, however, that if the
record of conviction shows that the victim was especially young (certainly under age 14, and
counsel should assume conservatively under age 15), the offense might be considered sexual
abuse. This ruling also should apply to §§ 286(b)(2), 288a(b)(2), 289(i). Pelayo-Garcia v.
Holder, 589 F.3d 1010 (9 th Cir. 2009).
At this writing Pelayo-Garcia is still subject to petition for reconsideration and rehearing en
banc. Therefore, criminal defense counsel should (a) plead to another offense where that is
possible, at least until the law is settled, and (b) in all cases, avoid creating a record of conviction
that establishes that the victim was younger than age 15.
Under current law, ICE (immigration prosecutors) will assert that these offenses are crimes
involving moral turpitude, if they can obtain evidence, including testimony, that the defendant
knew or should have known that the victim was under-age. Matter of Silva-Trevino, 24 I&N
Dec. 687 (AG 2008). ICE is very likely to charge the offense as a categorical deportable crime
of child abuse. While it is possible that the Ninth Circuit will not defer to the BIA’s view on
either of these issues, counsel should conservatively assume that they will and advise of the risk.
c. P.C. § 288(a), lewd act with a child under the age of 14
Any conviction will be held to be an aggravated felony as sexual abuse of a minor, even if
there was no physical contact between defendant and victim. United States v. Baron-Medina,
187 F.3d 1144, 1146 (9th Cir. 1999). A Ninth Circuit panel recently found that this rule was not
overturned by Estrada-Espinoza, which it characterized as applying only to consensual sex with
older teenagers. Counsel must assume that any plea to § 288(a) is an automatic aggravated
felony. United States v. Medina-Villa, 567 F.3d 507, 514 (9th Cir. 2009).
In addition, this is a crime involving moral turpitude and a deportable crime of child abuse.
If a sentence of a year is imposed, it will be found an aggravated felony as a “crime of violence.”
d. P.C. § 647.6(a), annoying or molesting a child
This offense is divisible as the aggravated felony sexual abuse of a minor, because it reaches
conduct that is and that is not serious enough to be harmful to the victim. United States v.
Pallares-Galan, 359 F.3d 1088 (9 th Cir. 2004). Therefore a plea to a specific, non-egregious
means of violating the statute, or if that is not possible at least a plea with a vague record of
conviction, will not cause deportability as an aggravated felony. See Pallares-Galan for
discussion of conduct covered under § 647.6(a) that is not necessarily sexual abuse of a minor,
e.g. conduct such as repeatedly driving past someone and making gestures, or unsuccessfully
soliciting sex from a person under the age of 14. Id. at 1101.
N-104 Immigrant Legal Resource Center