quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 For example, a good plea would be lawful entry into a building that is not a dwelling, with intent to commit fraud (where the intended loss was less than $10,000), 183 § 261.5(c), or some other specific offense that is not an aggravated felony. Another good specific plea to commit burglary would be unlawful entry into a vehicle with intent to commit such an offense. If a specific plea is not possible, a good vague plea is entry (hopefully designate a lawful entry; at least do not designate an unlawful entry) into a car, building, etc. with intent to commit “larceny or any felony” or “any felony.” This will prevent the conviction from making an LPR deportable under the aggravated felony ground, and it might prevent the conviction from being considered an aggravated felony for purposes of barring an application for admission, new status or other relief (the latter question is being litigated). For more information on how to control the record of conviction to reflect these pleas, see § N.3 “Record of Conviction,” supra, or a more thorough discussion at Defending Immigrants in the Ninth Circuit, § 2.11 The conviction may avoid being classed as a crime involving moral turpitude if the record establishes that the burglary was not done with intent to commit a crime involving moral turpitude, and was not unlawful entry of a dwelling. See next section. 2. Burglary as a Crime Involving Moral Turpitude. Traditionally, burglary has been held a crime involving moral turpitude only if the intended offense involved moral turpitude. Entry with intent to commit larceny is a crime involving moral turpitude, while entry with intent to commit a specified offense that does not involve moral turpitude is not. Intent to commit an undesignated offense (“a felony”) has been held not to involve moral turpitude in the past, but under Matter of Silva-Trevino this may not be enough to protect the client. Where possible, counsel should review the Chart for an offense that is not a CMT and plead specifically to this, which may forestall a broader inquiry into the facts under Silva-Trevino. See § N.6 Crimes Involving Moral Turpitude. In addition, an unlawful entry into a dwelling is categorically a crime involving moral turpitude, regardless of the intended offense. 184 B. Theft and Receipt of Stolen Property 1. Aggravated Felony A “theft offense (including receipt of stolen property)” is an aggravated felony if a sentence of a year or more has been imposed. 185 No offense will be an aggravated felony under this category if a sentence of not more than 364 days is imposed on each Count. See § N.3 Sentence Solutions. 183 A fraud or attempted fraud is not an aggravated felony unless the loss to the victim/s exceeds $10,000. Therefore a fraud without that element, but with a sentence of a year imposed, is not an aggravated felony. In contrast, a theft or attempted theft becomes an aggravated felony if a sentence of a year or more is imposed. 184 Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009). 185 INA § 101(a)(43)(G), 8 USC § 1101(a)(43)(G). Immigrant Legal Resource Center N-113
California Quick Reference Chart and Notes February 2010 The definition of theft for aggravated felony purposes is “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership even if such deprivation is less than total or permanent.” 186 This definition does not include fraud, embezzlement, or other offenses committed by deceit as opposed to stealth. Temporary taking, Veh. Code § 10851 and accessory after the fact. The aggravated felony definition of theft includes a permanent or temporary taking. (Compare to the moral turpitude definition of theft, below, which only includes a permanent taking). Thus the act of taking a vehicle as described in Calif. Veh. Code § 10851 is a “theft” for this purposes, despite the fact that it does not require intent to permanently deprive the owner. 187 Note, however that in United States v. Vidal the Ninth Circuit en banc held that § 10851 still is divisible as “theft.” Because the court found that § 10851 includes accessory after the fact, and because that offense is not a theft, the court found that § 10851 is divisible as “theft” as long as the record does not establish that the defendant acted as the principal rather than as an accessory after the fact. 188 Thus a plea to § 10851, even with a sentence of a year imposed, will not be held to be an aggravated felony if the record of conviction does not establish that the defendant was found guilty as principal rather than accessory after the fact. However, counsel still should do everything possible to avoid a one-year sentence. Several judges dissented from the en banc ruling in Vidal on the grounds that accessory after the fact cannot reasonably be held to be an offense described in § 10851, and it is possible that the Supreme Court would review the issue Early in 2007 the Supreme Court dismissed a similar but much weaker argument concerning aiding and abetting. 189 Theft of services and P.C. § 484. The definition of “theft” is limited to theft of property. Since P.C. § 484 includes theft of labor, it is a divisible statute for aggravated felony purposes. 190 If the record of conviction somehow is kept vague between theft of labor and other theft, the offense is not an aggravated felony as theft. California law expressly permits the prosecution to charge California offenses in the language of the statute. Section 952 of the California Penal Code provides that “[The charge] may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.” (emphasis supplied) 186 United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9 th Cir. 2002)(en banc). The Supreme Court approved this definition. Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 820 (2007). 187 Gonzales v. Duenas-Alvarez, id.; Matter of V-Z-S-, Int. Dec. 3434 (BIA 2000). 188 United States v. Vidal, 504 F.3d 1072, 1087 (9 th Cir. 2007)(en banc), holding that Calif. Veh. Code §10851 is a divisible statute as a “theft” aggravated felony because it includes the offense of accessory after the fact, and the record did not establish that the conviction at issue was not for accessory after the fact. 189 Duenas-Alvarez, supra. 190 United States v. Corona-Sanchez, 291 F.3d 1201 (9 th Cir. 2002)(en banc). See also Duenas-Alvarez, supra at 820, acknowledging widespread use of definition of theft as exerting control over property. N-114 Immigrant Legal Resource Center
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