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 />
2. Alternate Pleas to Avoid or Lessen Consequences<br />
Defense strategies <strong>and</strong> alternative plea goals are discussed in more detail at § N.14 Safer<br />
Pleas, infra. In general some safer pleas include: a conviction <strong>for</strong> annoying or molesting a child<br />
under PC § 647.6(a), false imprisonment under PC § 236, simple assault <strong>and</strong> simple battery<br />
under PC §§ 241(a), 243(a), possibly battery with serious injury under PC § 243(d), or even<br />
persuading a witness not to file a complaint under PC § 136.1(b). Section 136.1(b) is a strike,<br />
but appears to have no <strong>immigration</strong> consequences except conceivably if a sentence of a year or<br />
more is imposed. A strike may not be so dangerous if the defendant does not appear likely to<br />
commit crimes apart from having had an underage relationship.<br />
The Ninth Circuit held that a conviction under P.C. § 261.5(d) may be divisible as sexual<br />
abuse of a minor, so that counsel should keep in<strong>for</strong>mation that the victim was a younger child, or<br />
other egregious factors, out of the record of conviction. This also applies to §§ 286(b)(2),<br />
288a(b)(2), 289(i).<br />
All of the above alternate pleas are divisible <strong>for</strong> purposes of being an aggravated felony<br />
or moral turpitude offense. Counsel must keep the record clear of details, or at least free of<br />
onerous facts (e.g. a younger child, coercion, explicit behavior).<br />
A conviction <strong>for</strong> consensual sexual conduct with a minor under P.C. §§ 261.5(c), 286(b)(1),<br />
288a(b)(1), <strong>and</strong> 289(h) is not an aggravated felony, but might be held to be a crime involving<br />
moral turpitude or a deportable crime of child abuse. As always, counsel should attempt to keep<br />
in<strong>for</strong>mation out of the record of conviction showing that the victim was a minor.<br />
C. Prostitution<br />
For more in<strong>for</strong>mation see Defending Immigrants in the Ninth Circuit, § 6.2<br />
A noncitizen is inadmissible, but not deportable, if he or she “engages in” a pattern <strong>and</strong><br />
practice of prostitution. 8 USC § 1182(a)(2)(D). While no conviction is required <strong>for</strong> this finding,<br />
one or more convictions <strong>for</strong> prostitution will serve as evidence. Hiring a prostitute under Calif. P.C.<br />
§ 646(b) does not come within the “engaging in prostitution” ground of inadmissibility. Matter of<br />
Gonzalez-Zoquiapan, 24 I. & N. Dec. 549 (BIA 2008).<br />
The definition of prostitution <strong>for</strong> <strong>immigration</strong> purposes requires offering sexual<br />
intercourse <strong>for</strong> a fee, as opposed to other sexual conduct. Kepilino v. Gonzales, 454 F.3d 1057<br />
(9 th Cir. 2006). Section 647(b) is a divisible statute under this definition, because it prohibits<br />
“any lewd act” <strong>for</strong> consideration. To avoid providing proof that the person is inadmissible as a<br />
prostitute, counsel should plead to “lewd acts” rather than sexual intercourse in § 647(b) cases.<br />
Crime involving moral turpitude. Prostitution is a crime involving moral turpitude,<br />
whether lewd acts or intercourse is involved. See Note: Crimes Involving Moral Turpitude <strong>for</strong><br />
the effect of conviction of a crime involving moral turpitude, depending upon the individual’s<br />
<strong>immigration</strong> history <strong>and</strong> criminal record.<br />
Immigrant Legal Resource Center N-107