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