quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 1. Non-violently attempting to persuade a witness not to file a police complaint, P.C. § 136.1(b) While there is no immigration case on point, for the reasons set out in the box the authors believe that this offense does not have automatic immigration consequences. If a sentence of a year or more is imposed, it is possible that ICE would charge it as an aggravated felony; see additional discussion at Part G, Obstruction of Justice, infra. In that case, plead specifically to dissuading filing a police report, or leave the record vague. For the Defendant: California P.C. § 136.1(b) by its terms includes an attempt to dissuade a victim or witness from filing a police report. It does not require knowing and malicious action. See, e.g, People v. Upsher, 155 Cal. App. 4th 1311, 1320 (2007). The offense is not a categorical crime of violence, because it includes non-violent verbal persuasion. Ibid. Because it includes attempting to persuade someone not to file an initial police report, it is not a categorical crime of obstruction of justice, which requires interference with a pending judicial proceeding. See Matter of Espinoza-Gonzalez, 22 I&N Dec. 889, 892-92 (BIA 1999); Salazar-Luviano v. Mukasey, 551 F.3d 857, 862-63 (9 th Cir. 2008); see also Renteria- Morales v. Mukasey, 2008 U.S. App. LEXIS 27382 (9th Cir. Dec. 12, 2008), replacing 532 F.3d 949 (9 th Cir. 2008). The offense is not a categorical crime involving moral turpitude, because it does not require knowing or malicious action. Note that felony § 136.1(b) is a strike, which means that it might be accepted as an alternate plea to a serious offense. Defendants who are not compelled to accept a strike may consider less serious substitute pleas such as false imprisonment. Although persuading someone not to file a police report should not be held to be “obstruction of justice,” as always counsel should make every possible effort to obtain a sentence of 364 days or less for any single count. 2. False imprisonment, PC § 236. Warning: False imprisonment and Adam Walsh Act bar to filing a petition for immigrant family members in the future. If the victim is under the age of 18, conviction of this offense may bar a U.S. citizen or permanent resident from being able to file a family visa petition to get lawful immigration status for a close relative in the future. Thus while this is often a useful plea, counsel should consider an alternative, e.g. battery, if the defendant may someday wish to file a family visa petition for a family member. A waiver of this bar is available, but there is no review of a denial. See further discussion at Note 11, supra. Felony false imprisonment. For the reasons set out below the authors believe that felony false imprisonment should be held divisible as a crime of violence, as long as the record of conviction is vague, or indicates fraud or deceit. Defense counsel must conservatively assume that the offense will be held to be a crime involving moral turpitude. (However, there are strong arguments against this: false imprisonment by mere deceit might be held not to be a CMT; see, e.g., Rios case, below.) Immigrant Legal Resource Center N-125
California Quick Reference Chart and Notes February 2010 For the Defendant: Felony false imprisonment may be committed by violence, menace, fraud or deceit. P.C. § 237(a). Because fraud and deceit do not involve use or threat of force or the inherent risk that violence will ensue, the offense is divisible as a “crime of violence” under 18 USC § 16. See, e.g., People v. Rios, 177 Cal. App. 3d 445 (Cal. App. 1st Dist. 1986) (felony false imprisonment found when father picked up baby during visitation, later reported him missing to police, and moved him to Mexico where he raised the child telling him he was his godfather). If the reviewable record is vague, or indicates fraud or deceit, the conviction is not of an aggravated felony as a crime of violence even if a sentence of a year is imposed, and is not of a crime of domestic violence even if the victim and defendant share a domestic relationship. Section 237(a) is not categorically a crime of child abuse because it does not necessarily involve actual harm, or a threat of serious harm, to a child. See discussion of standard in Fregozo v. Holder, 576 F.3d 1030, 1037-38 (9th Cir. 2009). Misdemeanor false imprisonment. The authors believe that misdemeanor false imprisonment does not have immigration consequences for the below reasons. For the Defendant: Misdemeanor false imprisonment is not a crime involving moral turpitude or a crime of violence. By definition, it does not involve fraud, deceit, violence or menace. The statute specifically states that when these factors are present the offense is felony, not misdemeanor, false imprisonment. See P.C. § 237(a). See, e.g., Schanafelt v. Seaboard Finance Co (1951) 108 Cal. App. 2d 420. 3. Annoying or Molesting a Child Aggravated felony. The Ninth Circuit found that P.C. § 647.6(a) does not ‘categorically” constitute sexual abuse of a minor. See below. This means that as long as the record of conviction does not give details about the offense, or the details describe relatively mild behavior, the offense will not be held to be an aggravated felony. Therefore it is a good alternate plea to a charge of P.C. § 288(a) or other serious offenses, if it is possible to obtain it. Crime Involving Moral Turpitude. The Ninth Circuit held that the offense is not categorically a crime involving moral turpitude, Nicanor-Romero v. Mukasey, 523 F.3d 992 (9 th Cir. 2008) (partially overruled; see box below). Under Matter of Silva-Trevino, if the record of conviction does not establish whether the offense involves moral turpitude, the immigration judge may take evidence as to the actual conduct of the defendant rather than relying on the record of conviction. The best way to prevent this is for counsel to plead guilty specifically to committing mild and non-sexually explicit behavior, if possible without knowledge that the victim was underage. For suggestions, see summary of cases at Nicanor-Romero, supra at pp. 1000-1003 (partially reproduced at § N.10 Sex Offenses, supra). N-126 Immigrant Legal Resource Center
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