quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 One-year sentence must be imposed. Theft is not an aggravated felony if a sentence of 364 days or less is imposed. 8 USC § 1101(a)(43)(G). Even a misdemeanor theft with a oneyear sentence imposed will be an aggravated felony. See § N.3. A sentence imposed pursuant to a recidivist enhancement, for example for petty theft with a prior, will be counted toward the sentence of a year or more required for a theft to be an aggravated felony. The Supreme Court recently overturned Ninth Circuit precedent to hold that a sentencing enhancement imposed as a result of a recidivist offense shall count towards the length of sentence imposed. U.S. v. Rodriguez, 128 S. Ct. 1783 (2008), overturning in part U.S. v. Corona-Sanchez, 291 F.3d 1201 (9 th Cir. 2002)(en banc). In Corona- Sanchez the Ninth Circuit had held that a conviction for petty theft with a prior under P.C. §§ 484, 666 is not an aggravated felony, regardless of sentence imposed, because it would not consider sentence imposed pursuant to a recidivist enhancement. The Supreme Court disapproved this approach in Rodriquez. Theft by fraud. A conviction of theft by fraud under PC § 484 where the loss to the victim was $10,000 or more might be charged as an aggravated felony even if a sentence of a year or more was not imposed. See Part C, Fraud. Receipt of Stolen Property. A conviction for receipt of stolen property under P.C. § 496(a) categorically qualifies as a receipt of stolen property aggravated felony conviction, if a sentence of a year or more is imposed. 191 (As discussed below, this offense is divisible for moral turpitude purposes.) 2. Theft and Receipt of Stolen Property as crimes involving moral turpitude Theft with intent to permanently deprive the owner is a crime involving moral turpitude (“CMT”), while temporary intent such as joyriding is not. 192 See discussion of the immigration impact of conviction of one or more crimes involving moral turpitude at § N.6, and at Chapter 4, Defending Immigrants in the Ninth Circuit. California theft. Counsel should assume that any conviction under P.C. § 484 is a moral turpitude offense, because courts are likely to hold that it includes offenses that involve neither intent to temporarily deprive nor fraud. The fact that the offense involves theft of services is not relevant to moral turpitude, only to the aggravated felony “theft” definition. California receipt of stolen property under P.C. § 496(a), however, is divisible for moral turpitude purposes because it includes intent to temporarily deprive the owner of the property. 193 If counsel pleads specifically to temporary intent, a § 496(a) offense should not be 191 Matter of Cardiel-Guerrero, 25 I&N Dec. 12 (BIA 2009), Verduga-Gonzalez v.Holder, 581 F.3d 1059 (9 th Cir. 2009). 192 See, e.g., discussion of cases in Castillo-Cruz v. Holder, 581 F.3d 1154 (9 th Cir. 2009). 193 Ibid. Immigrant Legal Resource Center N-115
California Quick Reference Chart and Notes February 2010 held to involve moral turpitude even under the expanded evidentiary rules in Matter of Silva- Trevino. See § N.7 Crimes Involving Moral Turpitude. A single theft conviction and the CMT deportability/inadmissibility grounds. A single conviction of a CMT committed within five years of last admission will make a noncitizen deportable only if the offense has a maximum possible sentence of a year or more. 8 USC § 1227(a)(2)(A). Conviction for petty theft or attempted grand theft reduced to a misdemeanor (both with a six-month maximum sentence) as opposed to misdemeanor grand theft (with a oneyear maximum) will avoid deportability. A single conviction of a CMT will make a noncitizen inadmissible for moral turpitude, unless he or she comes within an exception. Under the “petty offense” exception, the noncitizen is not inadmissible if (a) she has committed only one CMT in her life and (b) the offense has a maximum sentence of a year and (c) a sentence of six months or less was imposed. 8 USC § 1182(a)(2)(A). To create eligibility for the exception, reduce felony grand theft to a misdemeanor under PC § 17. Immigration authorities will consider the conviction to have a potential sentence of one year for purposes of the petty offense exception. LaFarga v. INS, 170 F.3d 1213 (9 th Cir. 1999). See also § N.7, supra, or Defending Immigrants in the Ninth Circuit, Chapter 4. C. Fraud An offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 is an aggravated felony, regardless of sentence imposed. 194 Tax fraud where the loss to the government exceeds $10,000, and money laundering or illegal monetary transactions involving $10,000, also are aggravated felonies. 195 In Nijhawan v. Holder, 129 S.Ct. 2294 (2009) the Supreme Court loosened the restrictions on how the government may prove that the amount of loss exceeded $10,000. The Court held that the categorical approach does not apply to this part of the definition. Therefore, financial loss to the victim need not be an element of the fraud or deceit offense, and the government may prove the amount of the loss using evidence that is not permitted under the categorical approach. This decision reverses Ninth Circuit precedent which had held that only evidence under the categorical approach may be used, and that only an offense with financial loss as an element. 196 The categorical approach does apply to proof that the offense involved fraud or deceit. Under Nijhawan, how can counsel protect a noncitizen defendant who, for example, committed credit card fraud or welfare fraud of over $10,000? 194 8 USC §§ 1101(a)(43) (M)(ii), INA § 101(a)(43) (M)(ii). 195 8 USC §§ 1101(a)(43)(D), (M)(i), INA § 101(a)(43)(D), (M)(i). 196 Nijhawan v. Holder reversed the approach taken in cases such as Kawashima v. Mukasey (“Kawashima II”), 530 F.3d 1111 (9 th Cir. 2008) (offense must have financial loss as an element); Kawashima v. Gonzales (Kawashima I”), 503 F.3d 997 (9th Cir. 2007) (offense need not have financial loss as an element, but categorical approach applies to evidence; overturned by Kawashima II); Li v. Ashcroft, 389 F. 3d 892 (9 th Cir. 2004) (similar to Kawashima I). N-116 Immigrant Legal Resource Center
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