quick reference chart and notes for determining immigration - ILRC

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
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