quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
approval of this approach. 169 However, counsel should make every effort to keep a minor’s age
out of the record of conviction of an age-neutral sex offense. For one thing, this would prevent
the offense from being charged as a deportable “crime of child abuse.”
A non-consensual sex offense may be held a crime of violence. For example, sexual battery
under P.C. § 243.4 is a “crime of violence” as a felony but not necessarily as a misdemeanor. 170
A crime of violence is an aggravated felony if a sentence of a year or more is imposed. Because
a crime of violence becomes an aggravated felony if a sentence of a year or more is imposed,
counsel must bargain for a sentence of 364 days or less for any one Count. See § N.2 Sentence
Solutions.
Crime involving moral turpitude. Aggressive nonconsensual sexual conduct such as sexual
battery will be held a crime involving moral turpitude, regardless of whether the victim is a
minor.
Crime of child abuse, neglect or abandonment. The BIA held that an age-neutral offense that
involves harm will be a deportable crime of child abuse if the reviewable record of conviction
shows that the victim was under age 18. Matter of Velazquez, supra. For this reason counsel
should ensure that information in the record of conviction does not indicate that the victim was
under 18. However, immigration counsel will argue that this holding should be considered
overturned.
Conviction of an offense involving negligent or reckless public behavior, such as P.C. §
647(a), lewd conduct in public in disregard of possible witnesses, ought not to have immigration
consequences. Older cases held that it is a crime involving moral turpitude, but can hopefully
be distinguished based on the fact that virtually all of them involved homosexual behavior, and
may have been based on prejudice against LGBT persons. But see Nunez-Garcia, 262 F. Supp.
2d 1073 (CD Cal 2003), reaffirming older cases without comment.
Conviction of P.C. § 314, indecent exposure where witnesses can be annoyed or offended, is
a good possible plea. The Ninth Circuit held that it is not categorically a crime involving moral
turpitude. Ocegueda-Nunez v. Holder (9th Cir. February 10, 2010). For both §§ 314 and
647(a) however, it is possible that an immigration judge would hold a broad factual inquiry for
moral turpitude purposes only, under Silva-Trevino. See other options below.
169 Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc), cited with approval in Nijhawan v.
Holder, 129 S.Ct. 2294, 2300 (2009). In Nijhawan the Court held that “sexual abuse of a minor” is a “generic
offense.” This means that the criminal statute must contain the entire definition as elements of the offense, rather
than supplying part of the definition through facts found in the record of conviction. It cited with approval Estrada-
Espinoza, supra, which made that finding specifically about sexual abuse of a minor.
170 Compare 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) with 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-106 Immigrant Legal Resource Center