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
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
held that the similar offense misprision of felony is a CMT. 204 The issue is pending at the<br />
Ninth Circuit at this writing. While based on the reasoning in the en banc decision it appears<br />
unlikely that the Court would defer in this instance, ICE may so charge it <strong>and</strong> the defendant<br />
should be warned.<br />
‣ The BIA held that accessory with a one-year sentence imposed is an aggravated felony as<br />
“obstruction of justice.” Matter of Batista-Hern<strong>and</strong>ez, supra. To provide <strong>immigration</strong><br />
counsel with a strong argument against this holding, if a plea to P.C. § 32 with a one year<br />
sentence is taken, let the record of conviction indicate or leave open the possibility that the<br />
assistance was to avoid apprehension by the police be<strong>for</strong>e charges were filed, as opposed to<br />
avoiding something relating to an ongoing prosecution. If a sentence of a year or more is<br />
imposed, see discussion <strong>and</strong> “For the Defendant” box at Part G, Obstruction of Justice, infra.<br />
See further discussion at Chapter 9, § 9.24, Defending Immigrants in the Ninth Circuit.<br />
‣ Where a statute includes the possibility of conviction as an accessory after the fact, the<br />
statute is divisible. In United States v. Vidal 205 the court en banc held that a felony<br />
conviction under Calif. PC § 10851(a) was not an aggravated felony as theft, because the<br />
statute covers both theft principals <strong>and</strong> accessories after the fact. However, the Supreme<br />
Court might consider this issue in the future.<br />
2. Solicitation<br />
For the Defendant: A plea to transportation or to “offering” to commit an offense set out in<br />
Calif. H&S §§ 11352(a), 11360(a) or 11379(a) is not a drug trafficking aggravated felony<br />
offense. United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc).<br />
Soliciting possession of a drug under P.C. § 653f(d) per commission of Health & Safety Code §§<br />
11352, 11379, 11379.5, 11379.6, or 11391, is not is an aggravated felony or a deportable <strong>and</strong><br />
inadmissible drug offense. Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009).<br />
Limitations. The usefulness of the solicitation plea is increasingly limited. While a plea<br />
to “offering” to commit a drug offense under H&S § 11352(a) <strong>and</strong> similar statutes is not an<br />
aggravated felony (see below), it has been held to be a deportable drug offense. 206 The<br />
solicitation defense is not accepted outside the Ninth Circuit, <strong>and</strong> Congress might someday erase<br />
it legislatively. A better plea to avoid an aggravated felony in § 11352-type statutes is<br />
transportation, which does not have these limitations. See further discussion at Safer Pleas to<br />
Controlled Substances, infra.<br />
204 See Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007)(en banc) (Calif. P.C. § 32 never is a CMT<br />
because it lacks the element of depravity); Matter of Robles, 24 I&N Dec. 22 (BIA 2006) (misprision of felony<br />
under 8 USC §4 always is a CMT, because it obstructs justice); <strong>and</strong> Marmolejo-Campos v. Holder, 558 F.3d 903 (9 th<br />
Cir. 2009). (Court will defer to on-point, published BIA decisions on CMT’s that are not unreasonable) .<br />
205 United States v. Vidal, supra.<br />
206 Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009).<br />
Immigrant Legal Resource Center N-123