quick reference chart and notes for determining immigration - ILRC

More documents

Recommendations

Info

California Quick Reference Chart and Notes February 2010 ‣ Create a written plea agreement stating that the aggregate loss to the victim/s for the count/s of conviction was less than $10,000. Agree to an order of restitution of this amount as a condition of probation. Distance repayment of any additional restitution from the fraud/deceit conviction by ordering payment pursuant to a separate civil agreement or to a plea to an additional offense that does not involve fraud or deceit. ‣ Create a written plea agreement stating that the aggregate loss to the victim/s for the counts of conviction was less than $10,000. If the court orders more than $10,000 restitution, attempt to obtain a court statement or stipulation that this is for repayment of loss and other costs, with the calculation based upon a “rational and factual basis for the amount of restitution ordered.” 201 (Even without this statement, immigration attorneys will argue that restitution under P.C. § 1202.4 permits payment for collateral costs beyond direct loss (e.g., audit, travel, attorneys fees, etc.) and that the standard of proof for calculating the amount is less than the “clear and convincing evidence” required to prove deportability.) Counsel always should make a written plea agreement as described above. Before Nijhawan was published, the Ninth Circuit held in United States v. Chang that where a written guilty plea to a fraud offense states that the loss to the victim is less than $10,000, the federal conviction is not of an aggravated felony under subparagraph (M)(i), even if a restitution order requires the defendant to pay more than $10,000. 202 This is consistent with the statement in Nijhawan that the loss must “be tied to the specific counts covered by the conviction” and “cannot be based on acquitted or dismissed counts or general conduct.” Nijhawan at 2306. 3. Where the Plea is to Welfare Fraud of More than $10,000 California welfare fraud presents a more difficult situation than with a private victim, because fraud under Cal. Welf. & Inst. Code § 10980(c) is subject to a specific rule for setting restitution to the state agency: “the defrauded agency’s ‘loss’ should be calculated by subtracting the amount the government would have paid had no acts of fraud occurred from the amount the government actually paid.” 390 F.3d at 1099 (quoting People v. Crow, 6 Cal. 4th 952, 961-62 (Cal. 1993). If there is any means of pleading to a different fraud or theft offense, or if there is a way to show that restitution under this statute is not equal to loss, counsel should do so. In Ferreira v. Ashcroft, 390 F.3d 1091, 1098 (9th Cir. 2004), the defendant pled guilty to committing welfare fraud of more than $10,000, and the restitution order was for more than $10,000. While it is not yet clear whether the following strategies will succeed, if a plea must be taken to welfare fraud, counsel should arrange to plead to just one count of fraud of less than $10,000, while accepting restitution of more than $10,000. Immigration counsel will argue that the other funds were based on dropped charges and cannot be counted. If that is not possible, it might be possible for the client to plead to multiple counts, with no single count reflecting a loss of $10,000. It is not clear what effect this will have. 201 People v. Gemelli, 161 Cal. App. 4th 1539, 1542-43 (Cal. Ct. App. 2008). 202 Chang v. INS, 307 F.3d 1185 (9 th Cir. 2002). Immigrant Legal Resource Center N-119
California Quick Reference Chart and Notes February 2010 § N.14 Safer Pleas: A Summary of Better Pleas and Why They Work Legal Summaries to Provide to Defendants 203 (See also Tooby, Rollin, Safe Havens at www.criminalandimmigrationlaw.com) A. All-Purpose Substitute Pleas: Accessory after the Fact, Solicitation, Not Aiding and Abetting 1. Accessory after the Fact 2. Solicitation and its Limits 3. Aiding and Abetting is Not a Safe Plea B. Safer Pleas for Violent or Sexual Offenses 1. Persuading a witness not to file a complaint, PC § 136.1(b) 2. False imprisonment, PC § 236 3. Annoying or Molesting a Child 4. Simple battery, spousal battery, PC §§ 243(a), 243(e) 5. Consensual Sex with a Minor, PC § 261.5(c), to some extent § 261.5(d), and similar offenses 6. Misdemeanor sexual battery under PC § 243.4 7. Assault with a Deadly Weapon under PC § 245 8. Battery with serious bodily injury, PC § 243(d) C. Safer Pleas for DUI and Negligence/Recklessness that Risks Injury D. Safer Pleas for Offenses Related to Firearms or Explosives 1. Manufacture, possession of firearm, other weapon, PC § 12020(a) 2. Assault with a firearm or other weapon, PC § 245(a) E. Safer pleas for offenses relating to fraud, theft, receipt of stolen property, or burglary 1. False personation, PC § 529(3) 2. Joyriding, Veh. Code § 10851(a) 3. Burglary of a Non-Dwelling with Intent to Commit Certain Offenses, PC § 460(b) 4. Plead to theft instead of fraud, or create a plea agreement that specifies less than a $10,000 loss to the victim—plus other measures 5. Receipt of Stolen Property is not categorically a CMT F. Safer Pleas for Offenses Related to Drugs G. Safer Pleas for Obstruction of Justice (Defenses Relating to P.C. §§ 32 and 136.1(b) with a One-Year Sentence Imposed) H. Moral Turpitude and Matter of Silva-Trevino: Defense Strategies I. Dispositions that Avoid a “Conviction” J. Sentence of 364 Days or Less K. Is your client a U.S. citizen or national without knowing it? Introduction. This section offers a brief explanation of proposed safer offenses. For further discussion see works listed at § N.17 Resources. Some of the analyses below have been affirmed in published opinions, while others are the opinion of the authors as to how courts might be likely to rule. A plea to the offenses below will give immigrant defendants a greater chance to preserve or obtain lawful status in the United States. However, almost no criminal conviction is entirely safe from immigration consequences, which is why this section is entitled “safer” not “safe” alternatives. 203 Special thanks to Norton Tooby and Michael Mehr, who have identified several potential safer offenses. N-120 Immigrant Legal Resource Center
Page 1 and 2:
California Quick Reference Chart an
Page 3 and 4:
Page 5 and 6:
www.ilrc.org/criminal.php QUICK REF
Page 7 and 8:
www.ilrc.org/criminal.php CALIFORNI
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
Page 19 and 20:
Page 21 and 22:
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80:
Page 81 and 82:
Page 83 and 84:
Page 85 and 86:
Page 87 and 88:
Page 89 and 90:
Page 91 and 92:
Page 93 and 94: California Quick Reference Chart an
Page 143: California Quick Reference Chart an
Page 177: California Quick Reference Chart an
show all

quick reference chart and notes for determining immigration - ILRC

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?