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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
California Quick Reference Chart and Notes February 2010 The BIA has not ruled upon whether or not attempting to hire a prostitute is a crime involving moral turpitude. Gonzalez-Zoquiapan, supra. However, in some areas DHS is charging this. Conviction for running a prostitution or sex business may be a deportable offense, aggravated felony. Conviction of some offenses involving running prostitution or other sexrelated businesses are aggravated felonies. See 8 USC § 1101(a)(43)(I), (K). A noncitizen is deportable who has been convicted of importing noncitizens for prostitution or any immoral purpose. 8 USC § 1227(a)(2)(D)(iv). Relief for sex workers and victims of crime. Noncitizen victims of alien smuggling who were forced into prostitution, or noncitizens who are victims of serious crimes, may be able to apply for temporary and ultimately permanent status if they cooperate with authorities in an investigation, under the “T” or “U” visas. See 8 USC § 1101(a)(15)(T), (U), and § N.13 Resources for sources of more information about these visas. § N.11 Adam Walsh Act: U.S. Citizens and Permanent Residents Cannot Petition for a Relative If Convicted of Certain Offenses Against Minors (For more information, see Defending Immigrants in the Ninth Circuit, § 6.22, www.ilrc.org/criminal.php) Legislation entitled the Adam Walsh Act 171 which was passed in 2006 imposes immigration penalties on U.S. citizens and permanent residents who are convicted of certain crimes against minors. A U.S. citizen or permanent resident who is convicted of a “specified offense against a minor” may be prevented from filing a visa petition on behalf of a close family member. If the petitioner is a permanent resident rather than a citizen, the person will be referred to removal proceedings to see if he or she is deportable. The law provides an exception only if the DHS adjudicator makes a discretionary decision, not subject to review, that the citizen or permanent resident petitioner does not pose a risk to the petitioned relative despite the conviction. Example: Harry is a U.S. citizen who pled guilty in 2005 to soliciting a 17-year-old girl to engage in sexual conduct. In 2010 he submits a visa petition on behalf of his noncitizen wife. Immigration authorities will run an IBIS check on his name to discover the prior conviction. His visa petition will be denied, unless he is able to obtain a waiver based on proving that he is not a danger to his wife. 171 Section 402 of the Adam Walsh Act, effective July 27, 2006. See amended INA §§ 204(a)(1) and (b)(1) of the INA and 8 USC §§ 1154(a)(1) and (b)(i)(I). A minor is someone who is under the age of 18. See Title A, section 111(14), Adam Walsh Act. N-108 Immigrant Legal Resource Center
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