quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 For the Defendant: Annoying or molesting a child under P.C. § 647.6(a) is not categorically an aggravated felony as sexual abuse of a minor. United States v. Pallares-Galan, 359 F.3d 1088 (9 th Cir. 2004). The Ninth Circuit found that § 647.6(a) is not categorically a crime involving moral turpitude, because it encompasses mild and non-harmful behavior coupled with a broad mens rea requirement. Nicanor-Romero v. Mukasey, 523 F.3d 992, 1000-1003 (9 th Cir. 2008). The Court en banc partially overruled Nicanor-Romero, but only to the extent that Nicanor-Romero stated in general that the BIA’s moral turpitude determinations are not governed by the traditional principles of administrative deference; it did not overturn the Nicanor-Romero holding regarding § 647.6(a). Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9 th Cir. 2009) (en banc). There is no published administrative decision regarding § 647.6(a). Adam Walsh Act bar to immigrating family members. While this offense may involve very mild misconduct, it is possible that conviction will 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. See further discussion at Note 11, supra. 4. Simple battery, spousal battery, PC §§ 243(a), 243(e) A statute that can be violated by “mere offensive touching” is not a crime of violence under 18 USC § 16, at least absent evidence in the record of conviction that actual violence was involved. Counsel should identify “mere offensive touching” in the record, or if that is not possible leave the record vague as to level of violence. For the Defendant: Misdemeanor California battery, including battery against a spouse, under Calif. PC §§ 242, 243(a), 243(e) is not categorically a crime of violence, nor a crime involving moral turpitude. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9 th Cir. 2006) (P.C. § 242 is not a crime of violence or a domestic violence offense); Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006) (Calif. PC §§ 242, 243(e) is not categorically a crime of violence, a crime of domestic violence or a crime involving moral turpitude). The BIA has held that simple battery and spousal battery are not crimes involving moral turpitude where the offense is committed with mere offensive touching. Under Matter of Silva- Trevino, an immigration judge may go beyond the record of conviction if the record does not establish whether the offense involves moral turpitude. The best strategy to prevent this is to plead specifically to conduct that does not constitute a CMT, which here is a mere offensive touching. See § N.7 Crimes Involving Moral Turpitude. In contrast, counsel should assume that P.C. § 273.5 will be held a crime of violence and a crime of domestic violence. The Ninth Circuit held that it is not categorically a crime involving Immigrant Legal Resource Center N-127
California Quick Reference Chart and Notes February 2010 moral turpitude because it could involve an act with battery-like intent against a former cohabitant with an attenuated relationship. Morales-Garcia v. Holder, 567 F.3d 1058 (9 th Cir. 2009). Unless the plea is specifically to this, however, it is likely that a Silva-Trevino factual inquiry will be taken and a determination made that the conviction is of a CMT. 5. Consensual Sex with a Minor, PC § 261.5(c) and (d) Section 261.5(c) is an excellent plea in that it avoids an aggravated felony. However, the law is unsettled as to whether it may have other, less serious immigration consequences. ICE is very likely to charge it as a deportable crime of child abuse. For the Defendant: A conviction under Calif. P.C. §§ 261.5(c), 286(b)(1), 288a(b)(1), or 289(h) (sexual conduct with a person under the age of 18) never is an aggravated felony as sexual abuse of a minor. Sexual abuse of a minor requires conviction under a statute that has as an element that the victim was under the age of 16 and at least four years younger than the defendant. These offenses have as an element that the victim is under the age of 18 (and, for § 261.5(c), that the victim was three years younger than the defendant). Information from an individual’s reviewable record of conviction cannot be used to meet the element of age requirements. Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc), cited with approval in Nijhawan v. Holder, 129 S.Ct. 2294, 2300 (2009). A conviction under P.C. § 261.5(d) is not categorically “sexual abuse of a minor.” This ruling also should apply to §§ 286(b)(2), 288a(b)(2), 289(i). Pelayo-Garcia v. Holder, 589 F.3d 1010 (9 th Cir. 2009). A conviction under P.C. § 261.5(d) is not categorically a crime involving moral turpitude. Quintero-Salazar v. Keisler, 506 F.3d 688 (9 th Cir. 2007). Therefore, neither is a conviction under the less serious P.C. § 261.5(c) a categorical crime involving moral turpitude. Note on P.C. § 261.5(d). The aggravated felony sexual abuse of a minor. In Pelayo- Garcia, supra, the Court left open the possibility that if the record of conviction shows that the victim was especially young (certainly under age 14, and counsel should assume conservatively under age 15), the offense might be considered sexual abuse. Counsel should leave the record blank or indicate a higher age. Also, at this writing Pelayo-Garcia is not yet a secure decision, since immigration authorities will likely file a petition for reconsideration and rehearing en banc. Criminal defense counsel should (a) plead to another offense where that is possible, at least until the law is settled, and (b) in all cases, avoid creating a record of conviction that establishes that the victim was younger than age 15. The aggravated felony a “crime of violence” with a sentence imposed of a year or more. The Ninth Circuit has not found that consensual sex with a 15-year-old is categorically a crime of violence, but damaging information in the reviewable record might cause an individual conviction to be so considered. Therefore counsel should avoid a sentence imposed of a year or more for any single count of any of the above offenses, especially if the record of conviction N-128 Immigrant Legal Resource Center
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