quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
Divisible statute <strong>and</strong> the record of conviction. Many of the offenses discussed below<br />
are safer only because they are divisible statutes. A divisible statute is one that includes offenses<br />
that carry adverse <strong>immigration</strong> consequences as well as those that do not. Working with<br />
divisible statutes is perhaps the most effective way that criminal defenders can help noncitizen<br />
defendants. For the defendant to gain an advantage from a divisible statute, the defense counsel<br />
must keep careful control over what in<strong>for</strong>mation appears in the “record of conviction.”<br />
Please carefully consult § N.3 Record of Conviction <strong>and</strong> Divisible Statutes <strong>for</strong> in<strong>for</strong>mation<br />
on how to create safer pleas, safer factual bases <strong>for</strong> the plea, <strong>and</strong> the current state of the law.<br />
While it is best to specifically plead to the safer offense in a divisible statute, a vague record of<br />
conviction is sufficient to prevent deportability, <strong>and</strong> may be enough to prevent the offense from<br />
being a bar to an application <strong>for</strong> lawful status or other relief. Note also that the rules governing<br />
the record of conviction currently do not apply fully to crimes involving moral turpitude <strong>and</strong><br />
some other areas. For further discussion see Note 3, supra.<br />
A. All-Purpose Substitute Pleas: Accessory after the Fact, Solicitation in Limited<br />
Cases; Not Aiding <strong>and</strong> Abetting)<br />
1. Accessory after the Fact<br />
Accessory after the fact under PC § 32 is useful because it does not take on the character<br />
of the principal’s offense, <strong>and</strong> so is not a drug offense, crime of violence, etc. The Ninth Circuit<br />
held that it is not a crime involving moral turpitude, although ICE may contest this. Give the<br />
below to the client. If you are not able to avoid a sentence imposed of a year or more, see<br />
instructions below <strong>and</strong> see the discussion <strong>and</strong> “For the Defendant” box at Part G, infra.<br />
For the Defendant: Accessory after the fact under P.C. § 32 does not take on the character of<br />
the principal’s offense. Conviction of accessory after the fact is not a conviction relating to<br />
violence, controlled substances, firearms, domestic violence, fraud, etc. See, e.g., United States<br />
v. Innie, 7 F.3d 840 (9 th Cir. 1993) (not a crime of violence under 18 USC § 16 where the<br />
principal offense was murder <strong>for</strong> hire); United States v. Vidal, 504 F.3d 1072 (9 th Cir. 2007) (en<br />
banc) (not an aggravated felony as theft); Matter of Batista-Hern<strong>and</strong>ez, 21 I&N Dec. 955 (BIA<br />
1997) (not a deportable drug conviction or an aggravated felony drug conviction). The Ninth<br />
Circuit en banc held that Calif. P.C. § 32 is categorically not a crime involving moral turpitude.<br />
Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc).<br />
However, counsel also should take the following limitations into account.<br />
‣ ICE might charge this as a crime involving moral turpitude. The Ninth Circuit en banc held<br />
that Calif. PC § 32 is categorically not a crime involving moral turpitude. However it since<br />
ruled to give Chevron deference to BIA determinations of moral turpitude, <strong>and</strong> the BIA has<br />
N-122 Immigrant Legal Resource Center