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 />
The Ninth Circuit held that this offense is divisible as a crime involving moral turpitude.<br />
Nicanor-Romero v. Mukasey, 523 F.3d 992 (9 th Cir. 2008). (Note that the Court en banc later<br />
partially overruled Nicanor-Romero to the extent that Nicanor-Romero stated in general that<br />
moral turpitude determinations are not governed by the traditional principles of administrative<br />
deference, including Chevron. 167 However, the application of Chevron deference not affect the<br />
holding of Nicanor-Romero, because no administrative precedential decision addresses P.C. §<br />
647.6(a).)<br />
Under Matter of Silva-Trevino, if the record of conviction does not establish whether the<br />
offense involves moral turpitude, the <strong>immigration</strong> judge may take evidence as to the actual<br />
conduct of the defendant rather than relying on the record of conviction. The best way to prevent<br />
this is <strong>for</strong> counsel to plead guilty specifically to violating § 647.6(a) by committing mild <strong>and</strong><br />
non-sexually explicit behavior, if possible without knowledge that the victim was underage. For<br />
suggestions, see Nicanor-Romero, supra at 1000-1002. The offense involves an actus reus that<br />
can be quite mild, including touching a shoulder, 168 combined with a broadly defined mens rea<br />
of “abnormal sexual interest,” defined as sexual interest that would be “normal” except that it is<br />
directed at a person under the age of 18. Ibid.<br />
This is likely to be held divisible as a deportable crime of child abuse, depending upon<br />
whether the record of conviction establishes that the offense actually was harmful. See<br />
discussion of Fregozo v. Holder, 576 F.3d 1030, 1037-38 (9th Cir. 2009) at § N.9 Crimes of<br />
Child Abuse, supra.<br />
e. Safer Plea: an age-neutral, non-consensual sex offense where the record does<br />
not indicate that the victim is a minor (or even where it does)<br />
Aggravated felony. The Ninth Circuit held that a sex offense must have age as an element of<br />
the offense in order to constitute sexual abuse of a minor. The Supreme Court indicated<br />
167 Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9 th Cir. 2009) (en banc), discussing deference under Chevron<br />
U.S.A. Inc., v. Natural Resources Defense Council, Inc., 104 S. Ct. 2778 (1984). This provides that a federal court<br />
should defer to an agency interpretation of an ambiguous section of a statute that it administers in the interpretation<br />
is reasonable <strong>and</strong> appears in an on-point, precedent opinion.<br />
168 See Nicanor-Romero, supra at 1000-1001. “Even brief touching of a child’s shoulder qualifies as annoying<br />
conduct under the actus reus requirement of § 647.6(a). See In re Hudson, 143 Cal. App. 4th 1, 5 (2006) (placing<br />
h<strong>and</strong> on child’s shoulder while he played video game); see also People v. McFarl<strong>and</strong>, 78 Cal. App. 4th 489, 492<br />
(2000) (stroking child’s arm <strong>and</strong> face in laundromat). In fact, no actual touching is required. See Cal. Jur. Instr.<br />
(Crim.) § 16.440. For example, photographing children in public places with no focus on sexual parts of the body<br />
satisfies the actus reus element of § 647.6(a), so long as the manner of photographing is objectively “annoying.”<br />
People v. Dun<strong>for</strong>d, No. 039720, 2003 WL 1275417, at *4 (Cal. Ct. App. Mar. 19, 2003) (rejecting argument that<br />
“the defendant’s conduct” must “be sexual” in nature). “[H]<strong>and</strong> <strong>and</strong> facial gestures” or “[w]ords alone” also satisfy<br />
the actus reus of § 647.6(a). Pallares-Galan, 359 F.3d at 1101 (internal quotation marks <strong>and</strong> emphasis omitted).<br />
Words need not be lewd or obscene so long as they, or the manner in which they are spoken, are objectively<br />
irritating to someone under the age of eighteen. People v. Thompson, 206 Cal. App. 3d 459, 465 (1988). Moreover,<br />
“[i]t is not necessary that the act[s or conduct] actually disturb or irritate the child . . . .” Cal. Jur. Instr. (Crim.) §<br />
16.440. That is, the actus reus component of § 647.6(a) does “not necessarily require harm or injury, whether<br />
psychological or physical.” United States v. Baza-Martinez, 464 F.3d 1010, 1015 (9th Cir. 2006). In short, §<br />
647.6(a) is an annoying photograph away from a thought crime.”<br />
Immigrant Legal Resource Center N-105