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 />
Child abuse. The BIA has held that an age-neutral offense can be a deportable crime of<br />
child abuse if the record of conviction shows that the victim was under the age of 18. Although<br />
this holding should be considered disapproved under recent Supreme Court p<strong>reference</strong>, counsel<br />
should avoid the fight <strong>for</strong> the noncitizen by keeping the age of the victim out of the record.<br />
Moral turpitude. Counsel should assume that any sexual battery offense will be<br />
considered a crime involving moral turpitude.<br />
For the Defendant: Misdemeanor sexual battery under P.C. § 243.4 is not categorically a crime<br />
of violence. United States v. Lopez-Montanez, 421 F.3d 926, 928 (9th Cir. 2005). Sexual<br />
battery cannot be held to constitute the aggravated felony “sexual abuse of a minor” even if the<br />
record of conviction establishes that the victim was under the age of 18. For an offense to<br />
constitute “sexual abuse of a minor,” it must have as an element that the victim is a minor.<br />
Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc).<br />
Adam Walsh Act bar to immigrating family members. If the victim is under the age<br />
of 18, conviction of this offense may bar a U.S. citizen or permanent resident from being able to<br />
file a family visa petition to get lawful <strong>immigration</strong> status <strong>for</strong> a close relative in the future. See<br />
further discussion at Note 11, supra.<br />
7. Assault with a Deadly Weapon under P.C. § 245(a) <strong>and</strong> Moral Turpitude<br />
For the Defendant: Section 245(a) of the Cali<strong>for</strong>nia Penal Code is divisible as a crime<br />
involving moral turpitude because it is a general intent crime, Carr v. INS, 86 F.3d 949, 951 (9th<br />
Cir. 1996), cited in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1071 (9 th Cir. 2007) (en banc)<br />
(not categorically a crime involving moral turpitude). The requisite intent <strong>for</strong> assault with a<br />
deadly weapon is the intent to commit a battery. See, e.g., People v. Jones, 123 Cal. App. 3d 83,<br />
95 (Cal. App. 2d Dist. 1981). The intent “to severely injure another, or to injure in the sense of<br />
inflicting bodily harm is not necessary.” People v. Rocha, 479 P.2d 372, 377 (Cal. 1971). It is<br />
not a defense to conviction that the defendant was voluntarily intoxicated or otherwise<br />
incapacitated. See, e.g., People v. Windham (1977) 19 Cal 3d 121; People v. Velez, 175<br />
Cal.App.3d 785, 796, (3d Dist.1985) (defendant can be guilty of assault even if the defendant<br />
was drunk or otherwise disabled <strong>and</strong> did not intend to harm the person).<br />
In addition, § 245(a) is divisible <strong>for</strong> purposes of the firearms deportation ground, because §<br />
245(a)(1) prohibits use of a weapon other than a firearm.<br />
As discussed in the box above, P.C. § 245(a) is divisible <strong>for</strong> moral turpitude purposes<br />
because assault with a deadly weapon is a general intent crime, equivalent to the intent of<br />
battery, that reaches even intoxicated behavior. However, under the current rule in Matter of<br />
Silva-Trevino, an <strong>immigration</strong> judge may decide to accept evidence including testimony from the<br />
<strong>for</strong>mer defendant about the circumstances of the offense. Unless <strong>and</strong> until Silva-Trevino is<br />
N-130 Immigrant Legal Resource Center