quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 Give defense tools in writing to the Defendant. Look for “For the Defendant” boxes. The vast majority of immigrants are unrepresented in deportation (“removal”) proceedings. They face an opposing government attorney with no legal advice or support. Many immigration judges are not expert in the specialized area of immigration consequences of crimes, and moreover they deal with enormously high caseloads. If you negotiate a safer plea for immigration purposes, make sure it doesn’t go to waste. Give your client (or her immigration counsel, if any) a written statement describing the available arguments as to why the criminal disposition avoids an immigration consequence. This Note provides you with a summary of strategic information and ideas for alternate pleas, as well as written summaries of defense arguments, which can be copied or photocopied and handed to the noncitizen defendant. See information in boxes marked “For the Defendant.” These sections summarize available defense arguments and provide citations. Giving this information to your client is especially important if he or she does not have immigration counsel: your client literally will hand this piece of paper to the immigration judge. For example, if Mr. Cazares pled guilty to H&S § 11379(a), specifically to transportation of an unspecified controlled substance, you may give him a written statement such as: Transportation for personal use is not an aggravated felony. An offense involving an unspecified California controlled substance is not a deportable or inadmissible offense or an aggravated felony. Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9 th Cir. 2007). Besides providing this information, give the defendant copies of any documents that establish beneficial aspects of the plea. These may include the charging document including any written amendments, a written plea agreement, the minute order (e.g., showing charge was amended) and the abstract of judgment (same). Make sure that these records correctly reflect the disposition you worked out (especially indicating if the original charge was amended), and that they do not contain any notations or information that is inconsistent with your bargain. Make sure papers are not used against the client. A lawful permanent resident should show these materials to immigration counsel or, if there is none, the judge, but should not show them to government interviewers or the ICE attorney. (A non-LPR may find herself with an ICE officer acting as “judge,” so she may need to show the officer.) Do not hand the defendant documents that are detrimental to the case. ICE has the burden of obtaining documents to prove that a conviction exists and is a basis for removal. Finally, if the defendant does not have an immigration hold and is not going directly to proceedings, mail the materials to him or her. You can assure your client that he or she does not have to make the argument to the immigration judge. That is the advantage of having a written summary. However, the best result will come when your client understands as much as possible about the immigration defense. This understanding may be the thing that gives your client the courage and tenacity to withstand railroading and the pressure of detention, and to make his or her voice heard. Immigrant Legal Resource Center N-121
California Quick Reference Chart and Notes February 2010 Divisible statute and the record of conviction. Many of the offenses discussed below are safer only because they are divisible statutes. A divisible statute is one that includes offenses that carry adverse immigration consequences as well as those that do not. Working with divisible statutes is perhaps the most effective way that criminal defenders can help noncitizen defendants. For the defendant to gain an advantage from a divisible statute, the defense counsel must keep careful control over what information appears in the “record of conviction.” Please carefully consult § N.3 Record of Conviction and Divisible Statutes for information on how to create safer pleas, safer factual bases for the plea, and the current state of the law. While it is best to specifically plead to the safer offense in a divisible statute, a vague record of conviction is sufficient to prevent deportability, and may be enough to prevent the offense from being a bar to an application for lawful status or other relief. Note also that the rules governing the record of conviction currently do not apply fully to crimes involving moral turpitude and some other areas. For further discussion see Note 3, supra. A. All-Purpose Substitute Pleas: Accessory after the Fact, Solicitation in Limited Cases; Not Aiding and Abetting) 1. Accessory after the Fact Accessory after the fact under PC § 32 is useful because it does not take on the character of the principal’s offense, and so is not a drug offense, crime of violence, etc. The Ninth Circuit held that it is not a crime involving moral turpitude, although ICE may contest this. Give the below to the client. If you are not able to avoid a sentence imposed of a year or more, see instructions below and see the discussion and “For the Defendant” box at Part G, infra. For the Defendant: Accessory after the fact under P.C. § 32 does not take on the character of the principal’s offense. Conviction of accessory after the fact is not a conviction relating to violence, controlled substances, firearms, domestic violence, fraud, etc. See, e.g., United States v. Innie, 7 F.3d 840 (9 th Cir. 1993) (not a crime of violence under 18 USC § 16 where the principal offense was murder for hire); United States v. Vidal, 504 F.3d 1072 (9 th Cir. 2007) (en banc) (not an aggravated felony as theft); Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) (not a deportable drug conviction or an aggravated felony drug conviction). The Ninth Circuit en banc held that Calif. P.C. § 32 is categorically not a crime involving moral turpitude. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc). However, counsel also should take the following limitations into account. ‣ ICE might charge this as a crime involving moral turpitude. The Ninth Circuit en banc held that Calif. PC § 32 is categorically not a crime involving moral turpitude. However it since ruled to give Chevron deference to BIA determinations of moral turpitude, and the BIA has N-122 Immigrant Legal Resource Center
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quick reference chart and notes for determining immigration - ILRC

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