quick reference chart and notes for determining immigration - ILRC

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