quick reference chart and notes for determining immigration - ILRC

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