quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
shows that the victim is under 15 years of age or other adverse factors. See § N. 3 Sentence
Solutions.
Moral turpitude. While the Ninth Circuit held that § 261.5(d) is not categorically a crime
involving moral turpitude (Quintero-Salazar, supra), ICE will assert that all of the above
offenses are crimes involving moral turpitude, if they make a finding that the defendant knew or
should have known that the victim was under-age. Matter of Silva-Trevino, 24 I&N Dec. 687
(AG 2008). See § N.7: Crime Involving Moral Turpitude.
Crime of Child Abuse. ICE is likely to charge the offense as a deportable crime of child
abuse. It is not clear whether the Ninth Circuit will defer to the BIA’s view on these issues. See
§ N.9: Domestic Violence, Child Abuse.
Adam Walsh Act bar to immigrating family members. It appears that these
convictions 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.
6. Sexual battery under PC § 243.4
While this plea requires registration as a sex offender, it has some advantages in terms of
immigration consequences. It will be held to be a crime involving moral turpitude but
otherwise may avoid major consequences depending on the record of conviction.
Aggravated felony, crime of domestic violence. Sexual battery does not constitute the
aggravated felony rape, at least as long as the record of conviction does not describe a rape. The
offense should not constitute sexual abuse of a minor even if the record of conviction shows that
the victim was under the age of 18. See discussion Estrada-Espinoza, supra, at § N.10: Sex
Offenses (age of the victim must be an element of the offense, required for guilt, and not just a
fact obtained from the reviewable record). However, as always counsel should act
conservatively and keep the age of a minor victim out of the reviewable record.
The Ninth Circuit found that misdemeanor sexual battery is not categorically a crime of
violence because use of force is not necessarily an element. 208 Therefore, absent information in
the record establishing that violence was used, a misdemeanor conviction will not be a
deportable domestic violence offense even if the record established a domestic relationship, and
will not be an aggravated felony as a crime of violence even if a sentence of a year is imposed.
In contrast, felony sexual battery is a crime of violence, 209 and will carry these consequences.
208 United States v. Lopez-Montanez, 421 F.3d 926, 928 (9th Cir. 2005) (conviction under Cal PC § 243.4(a) is not a
crime of violence under USSG § 2L1.2(b)(1)(A) because it does not have use of force as an element). Section
2L1.2(b)(1)(A) uses the same standard as 18 USC 16(a).
209 Lisbey v. Gonzales, 420 F.3d 930, 933-934 (9th Cir. 2005) (felony conviction of Cal. Penal Code, § 243.4(a) is
categorically a crime of violence under 18 USC §16(b)).
Immigrant Legal Resource Center N-129