quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 held that the similar offense misprision of felony is a CMT. 204 The issue is pending at the Ninth Circuit at this writing. While based on the reasoning in the en banc decision it appears unlikely that the Court would defer in this instance, ICE may so charge it and the defendant should be warned. ‣ The BIA held that accessory with a one-year sentence imposed is an aggravated felony as “obstruction of justice.” Matter of Batista-Hernandez, supra. To provide immigration counsel with a strong argument against this holding, if a plea to P.C. § 32 with a one year sentence is taken, let the record of conviction indicate or leave open the possibility that the assistance was to avoid apprehension by the police before charges were filed, as opposed to avoiding something relating to an ongoing prosecution. If a sentence of a year or more is imposed, see discussion and “For the Defendant” box at Part G, Obstruction of Justice, infra. See further discussion at Chapter 9, § 9.24, Defending Immigrants in the Ninth Circuit. ‣ Where a statute includes the possibility of conviction as an accessory after the fact, the statute is divisible. In United States v. Vidal 205 the court en banc held that a felony conviction under Calif. PC § 10851(a) was not an aggravated felony as theft, because the statute covers both theft principals and accessories after the fact. However, the Supreme Court might consider this issue in the future. 2. Solicitation For the Defendant: A plea to transportation or to “offering” to commit an offense set out in Calif. H&S §§ 11352(a), 11360(a) or 11379(a) is not a drug trafficking aggravated felony offense. United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc). Soliciting possession of a drug under P.C. § 653f(d) per commission of Health & Safety Code §§ 11352, 11379, 11379.5, 11379.6, or 11391, is not is an aggravated felony or a deportable and inadmissible drug offense. Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009). Limitations. The usefulness of the solicitation plea is increasingly limited. While a plea to “offering” to commit a drug offense under H&S § 11352(a) and similar statutes is not an aggravated felony (see below), it has been held to be a deportable drug offense. 206 The solicitation defense is not accepted outside the Ninth Circuit, and Congress might someday erase it legislatively. A better plea to avoid an aggravated felony in § 11352-type statutes is transportation, which does not have these limitations. See further discussion at Safer Pleas to Controlled Substances, infra. 204 See Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007)(en banc) (Calif. P.C. § 32 never is a CMT because it lacks the element of depravity); Matter of Robles, 24 I&N Dec. 22 (BIA 2006) (misprision of felony under 8 USC §4 always is a CMT, because it obstructs justice); and Marmolejo-Campos v. Holder, 558 F.3d 903 (9 th Cir. 2009). (Court will defer to on-point, published BIA decisions on CMT’s that are not unreasonable) . 205 United States v. Vidal, supra. 206 Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009). Immigrant Legal Resource Center N-123
California Quick Reference Chart and Notes February 2010 The Ninth Circuit held that felony solicitation to commit a crime of violence under P.C. § 653f(a) and (c) is an aggravated felony as a crime of violence. Prakash v. Holder, 579 F.3d 1033 (9 th Cir. 2009). 3. Aiding and Abetting is not a safe plea While earlier the Ninth Circuit held that a California conviction for aiding and abetting an aggravated felony is not itself an aggravated felony, the Supreme Court overruled this, and the defense no longer works. 207 This defense was destroyed when the Supreme Court, held that aiding and abetting is included in the aggravated felony theft. B. Safer Pleas for Violent or Sexual Offenses Warning for U.S. citizen or permanent resident defendants: A citizen or permanent resident who is convicted of sexual conduct or solicitation, kidnapping, or false imprisonment, where the victim is under the age of 18 faces a serious penalty: he or she may be barred from filing a family visa petition to get lawful immigration status for a close relative in the future. See further discussion of the Adam Walsh Act at Note 11, supra. Overview of consequences. Conviction of an offense that comes within the definition of a “crime of violence” under 18 USC § 16 can cause two types of adverse immigration consequences. If a sentence of a year or more is imposed it is an aggravated felony under 8 USC § 1101(a)(43)(F). Regardless of sentence, if the defendant had a domestic relationship with the victim it is a deportable offense as a “crime of domestic violence” under 8 USC § 1227(a)(2)(E). Under 18 USC § 16(a), an offense is a crime of violence if it has as an element intent to use or threaten force against a person or property. Under 18 USC § 16(b) a felony offense is a crime of violence even without intent to use force, if it is an offense that by its nature involves a substantial risk that force will be used. An offense that is held to be sexual abuse of a minor or rape is an aggravated felony regardless of sentence imposed. Offenses that involve an intent to use great force or sexual intent also commonly are held to be crimes involving moral turpitude. Further, under Matter of Silva-Trevino, unless counsel pleads to an offense that cannot be held a crime involving moral turpitude, the immigration judge may elect to take evidence on the defendant’s conduct, as opposed to the contents of the criminal record, and decide the moral turpitude question based on that. 207 Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 (U.S. 2007) overruled the defense, which was discussed in Martinez- Perez v. Gonzales, 417 F.3d at 1027 (9 th Cir. 2005) and Penuliar v. Ashcroft, 395 F.3d 1037 (9 th Cir. 2005). N-124 Immigrant Legal Resource Center
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