quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 “Specified offense against a minor” includes offenses that are not extremely serious, such as false imprisonment. It is defined as an offense against a victim who has not attained the age of 18 years, which involves any of the following acts. A state offense must be substantially similar to the federal offenses in the definition. 172 (A) an offense involving kidnapping, unless committed by a parent or guardian; (B) an offense involving false imprisonment, unless committed by a parent or guardian; (C) solicitation to engage in sexual conduct; (D) use in sexual performance; (E) solicitation to practice prostitution; (F) video voyeurism as described in 18 USC § 1801; (G) possession, production, or distribution of child pornography; (H) criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt this conduct; (I) any conduct that by its nature is a sex offense against a minor. This section is further defined at section 111(5)(A). 173 Criminal defense counsel should assume conservatively that conviction of an age-neutral offense (e.g., false imprisonment under P.C. § 36) will be come within the definition if there is evidence to show that the victim was a minor. Where the victim is a minor, counsel should attempt to plead to an offense that does not appear in the above list. If that is not possible, counsel should keep the age of the victim out of the reviewable record. However, it is not clear that the inquiry will be limited to the reviewable record and the categorical approach. Juvenile Delinquency Dispositions. The definition of conviction for this purpose only involves certain juvenile delinquency dispositions, where the juvenile was at least 14 years old at the time of committing the offense. The offense must have been the same as or more severe than aggravated sexual abuse described in 18 USC § 2241, or attempt or conspiracy to commit such an offense. 18 USC § 2241 prohibits crossing a state border to engage in a sexual act with someone under the age of 12, or sexual conduct by force or threat with a person between the ages of 12 and 15. 172 Title I, Subtitle A, section 111(7) of the Adam Walsh Act; see also “Guidance for Adjudication of Family-Based Petitions under the Adam Walsh Child Protection and Safety Act of 2006,” issued by Michael Aytes and dated February 8, 2007, page 2. 173 This includes a criminal offense that has an element involving a sexual act or sexual contact with another; a criminal offense that is a “specified offense against a minor” (therefore, any act described in A-H above is covered also by (I)); certain federal offenses -- 18 USC §§ 1152, 1153, 1591; chapters 109A, 110, or 117 of title 18 (but excluding sections 2257, 2257A, and 2258); a military offense specified by the Secretary of Defense in section 115(a)(8)(C)(i) of Public Law 105-119 (10 USC § 951 note); or attempt or conspiracy to commit an offense in the above four subsections. Immigrant Legal Resource Center N-109
California Quick Reference Chart and Notes February 2010 § N.12 Firearms Offenses (For more information, see Defending Immigrants in the Ninth Circuit, §§ 6.1, 9.18, www.ilrc.org/criminal.php) A. The Firearms Deportability Ground A noncitizen is deportable if at any time after admission into the United States he is “convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying or of attempting or conspiring to [commit these acts] in violation of any law, any weapon, part or accessory which is a firearm or destructive device (as defined in [18 USC § 921(a)] …” 8 USC § 1227(a)(C). An offense as minor as possession of an unregistered weapon can trigger deportability. Sections 245(a), 245(d) and 12020(a) are divisible, in that they reach weapons that are and are not firearms. Counsel should designate a non-firearm, or at least leave the record vague as to whether the offense was a firearm. For further discussion see § N.14, “Safer Pleas.” There is no firearms ground of inadmissibility. A noncitizen—including a deportable permanent resident—who is deportable but not inadmissible can apply for “adjustment of status” (to become a permanent resident, for example based on a family visa petition) if she is otherwise eligible. This applies to non-permanent residents as well as deportable permanent residents who wish to “re-adjust” as a defense to deportation. If adjustment is granted the person will no longer be deportable based on the conviction. 174 Adjustment of status is discretionary relief, and the applicant must be able to persuade the DHS or immigration judge to grant it. B. Firearms Offenses as Aggravated Felonies Any offense involving trafficking in firearms and destructive devices (bombs and explosives) is an aggravated felony. For example, sale of a firearm under P.C. § 12020(a) is an aggravated felony. State statutes that are analogous to designated federal firearms offenses are aggravated felonies. 175 Significantly, conviction of being a felon or addict in possession of a firearm under P.C. § 12021(a)(1) is an aggravated felony. 176 A firearms offense that involves violence, or the threat or risk of violence, may be classed as a crime involving moral turpitude. If a sentence of a year or more is imposed, it may be an aggravated felony as a crime of violence. 174 Matter of Rainford, Int. Dec. 3191 (BIA 1992). If the person also is inadmissible under a ground that can be waived, a waiver can be submitted with the adjustment application. Matter of Gabryelsky, Int. Dec. 3213 (BIA 1993). 175 8 USC § 1101(a)(43)(C), (E), INA § 101(a)(43)(C), (E). 176 United States v. Castillo-Rivera, 244 F.3d 1020 (9 th Cir. 2001). N-110 Immigrant Legal Resource Center
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quick reference chart and notes for determining immigration - ILRC

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