quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
Child abuse. The BIA has held that an age-neutral offense can be a deportable crime of
child abuse if the record of conviction shows that the victim was under the age of 18. Although
this holding should be considered disapproved under recent Supreme Court preference, counsel
should avoid the fight for the noncitizen by keeping the age of the victim out of the record.
Moral turpitude. Counsel should assume that any sexual battery offense will be
considered a crime involving moral turpitude.
For the Defendant: Misdemeanor sexual battery under P.C. § 243.4 is not categorically a crime
of violence. United States v. Lopez-Montanez, 421 F.3d 926, 928 (9th Cir. 2005). Sexual
battery cannot be held to constitute the aggravated felony “sexual abuse of a minor” even if the
record of conviction establishes that the victim was under the age of 18. For an offense to
constitute “sexual abuse of a minor,” it must have as an element that the victim is a minor.
Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc).
Adam Walsh Act bar to immigrating family members. If the victim is under the age
of 18, conviction of this offense may 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.
7. Assault with a Deadly Weapon under P.C. § 245(a) and Moral Turpitude
For the Defendant: Section 245(a) of the California Penal Code is divisible as a crime
involving moral turpitude because it is a general intent crime, Carr v. INS, 86 F.3d 949, 951 (9th
Cir. 1996), cited in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1071 (9 th Cir. 2007) (en banc)
(not categorically a crime involving moral turpitude). The requisite intent for assault with a
deadly weapon is the intent to commit a battery. See, e.g., People v. Jones, 123 Cal. App. 3d 83,
95 (Cal. App. 2d Dist. 1981). The intent “to severely injure another, or to injure in the sense of
inflicting bodily harm is not necessary.” People v. Rocha, 479 P.2d 372, 377 (Cal. 1971). It is
not a defense to conviction that the defendant was voluntarily intoxicated or otherwise
incapacitated. See, e.g., People v. Windham (1977) 19 Cal 3d 121; People v. Velez, 175
Cal.App.3d 785, 796, (3d Dist.1985) (defendant can be guilty of assault even if the defendant
was drunk or otherwise disabled and did not intend to harm the person).
In addition, § 245(a) is divisible for purposes of the firearms deportation ground, because §
245(a)(1) prohibits use of a weapon other than a firearm.
As discussed in the box above, P.C. § 245(a) is divisible for moral turpitude purposes
because assault with a deadly weapon is a general intent crime, equivalent to the intent of
battery, that reaches even intoxicated behavior. However, under the current rule in Matter of
Silva-Trevino, an immigration judge may decide to accept evidence including testimony from the
former defendant about the circumstances of the offense. Unless and until Silva-Trevino is
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