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 />
The Ninth Circuit held that felony solicitation to commit a crime of violence under P.C. §<br />
653f(a) <strong>and</strong> (c) is an aggravated felony as a crime of violence. Prakash v. Holder, 579 F.3d<br />
1033 (9 th Cir. 2009).<br />
3. Aiding <strong>and</strong> Abetting is not a safe plea<br />
While earlier the Ninth Circuit held that a Cali<strong>for</strong>nia conviction <strong>for</strong> aiding <strong>and</strong> abetting an<br />
aggravated felony is not itself an aggravated felony, the Supreme Court overruled this, <strong>and</strong> the<br />
defense no longer works. 207 This defense was destroyed when the Supreme Court, held that<br />
aiding <strong>and</strong> abetting is included in the aggravated felony theft.<br />
B. Safer Pleas <strong>for</strong> Violent or Sexual Offenses<br />
Warning <strong>for</strong> U.S. citizen or permanent resident defendants: A citizen or permanent<br />
resident who is convicted of sexual conduct or solicitation, kidnapping, or false<br />
imprisonment, where the victim is under the age of 18 faces a serious penalty: he or she may<br />
be barred from filing a family visa petition to get lawful <strong>immigration</strong> status <strong>for</strong> a close<br />
relative in the future. See further discussion of the Adam Walsh Act at Note 11, supra.<br />
Overview of consequences. Conviction of an offense that comes within the definition of<br />
a “crime of violence” under 18 USC § 16 can cause two types of adverse <strong>immigration</strong><br />
consequences. If a sentence of a year or more is imposed it is an aggravated felony under 8 USC<br />
§ 1101(a)(43)(F). Regardless of sentence, if the defendant had a domestic relationship with the<br />
victim it is a deportable offense as a “crime of domestic violence” under 8 USC § 1227(a)(2)(E).<br />
Under 18 USC § 16(a), an offense is a crime of violence if it has as an element intent to use or<br />
threaten <strong>for</strong>ce against a person or property. Under 18 USC § 16(b) a felony offense is a crime of<br />
violence even without intent to use <strong>for</strong>ce, if it is an offense that by its nature involves a<br />
substantial risk that <strong>for</strong>ce will be used.<br />
An offense that is held to be sexual abuse of a minor or rape is an aggravated felony<br />
regardless of sentence imposed.<br />
Offenses that involve an intent to use great <strong>for</strong>ce or sexual intent also commonly are held<br />
to be crimes involving moral turpitude. Further, under Matter of Silva-Trevino, unless counsel<br />
pleads to an offense that cannot be held a crime involving moral turpitude, the <strong>immigration</strong> judge<br />
may elect to take evidence on the defendant’s conduct, as opposed to the contents of the criminal<br />
record, <strong>and</strong> decide the moral turpitude question based on that.<br />
207 Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 (U.S. 2007) overruled the defense, which was discussed in Martinez-<br />
Perez v. Gonzales, 417 F.3d at 1027 (9 th Cir. 2005) <strong>and</strong> Penuliar v. Ashcroft, 395 F.3d 1037 (9 th Cir. 2005).<br />
N-124 Immigrant Legal Resource Center