quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
2. Alternate Pleas to Avoid or Lessen Consequences
Defense strategies and alternative plea goals are discussed in more detail at § N.14 Safer
Pleas, infra. In general some safer pleas include: a conviction for annoying or molesting a child
under PC § 647.6(a), false imprisonment under PC § 236, simple assault and simple battery
under PC §§ 241(a), 243(a), possibly battery with serious injury under PC § 243(d), or even
persuading a witness not to file a complaint under PC § 136.1(b). Section 136.1(b) is a strike,
but appears to have no immigration consequences except conceivably if a sentence of a year or
more is imposed. A strike may not be so dangerous if the defendant does not appear likely to
commit crimes apart from having had an underage relationship.
The Ninth Circuit held that a conviction under P.C. § 261.5(d) may be divisible as sexual
abuse of a minor, so that counsel should keep information that the victim was a younger child, or
other egregious factors, out of the record of conviction. This also applies to §§ 286(b)(2),
288a(b)(2), 289(i).
All of the above alternate pleas are divisible for purposes of being an aggravated felony
or moral turpitude offense. Counsel must keep the record clear of details, or at least free of
onerous facts (e.g. a younger child, coercion, explicit behavior).
A conviction for consensual sexual conduct with a minor under P.C. §§ 261.5(c), 286(b)(1),
288a(b)(1), and 289(h) is not an aggravated felony, but might be held to be a crime involving
moral turpitude or a deportable crime of child abuse. As always, counsel should attempt to keep
information out of the record of conviction showing that the victim was a minor.
C. Prostitution
For more information see Defending Immigrants in the Ninth Circuit, § 6.2
A noncitizen is inadmissible, but not deportable, if he or she “engages in” a pattern and
practice of prostitution. 8 USC § 1182(a)(2)(D). While no conviction is required for this finding,
one or more convictions for prostitution will serve as evidence. Hiring a prostitute under Calif. P.C.
§ 646(b) does not come within the “engaging in prostitution” ground of inadmissibility. Matter of
Gonzalez-Zoquiapan, 24 I. & N. Dec. 549 (BIA 2008).
The definition of prostitution for immigration purposes requires offering sexual
intercourse for a fee, as opposed to other sexual conduct. Kepilino v. Gonzales, 454 F.3d 1057
(9 th Cir. 2006). Section 647(b) is a divisible statute under this definition, because it prohibits
“any lewd act” for consideration. To avoid providing proof that the person is inadmissible as a
prostitute, counsel should plead to “lewd acts” rather than sexual intercourse in § 647(b) cases.
Crime involving moral turpitude. Prostitution is a crime involving moral turpitude,
whether lewd acts or intercourse is involved. See Note: Crimes Involving Moral Turpitude for
the effect of conviction of a crime involving moral turpitude, depending upon the individual’s
immigration history and criminal record.
Immigrant Legal Resource Center N-107