quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
overruled, the IJ might decide to go beyond the record of conviction and question the defendant
regarding intent. A specific statement in the plea that the defendant meant no harm and/or was
incapacitated ought to prevent this.
Section 245 has another advantage, which is that it is divisible for purposes of being a
firearms offense; see discussion in Part C, infra. Section 245 has been held to constitute a
crime of violence, however. United States v. Grajeda, 581 F.3d 1186, 1190 (9th Cir. Cal. 2009)
8. Battery with serious bodily injury, PC § 243(d)
For the Defendant: Battery under P.C. § 243(d) has the same intent requirement as simple
battery. Therefore the offense does not necessarily involve moral turpitude despite the injury
requirement. See discussion in Indexed Decision Matter of Muceros, A42 998 610 (BIA
5/11/00) http://www.justice.gov/eoir/vll/intdec/indexnet00/muceros.pdf, citing People v.
Campbell (1994) 28 Cal. Rptr. 2d 716. Section 243(d) is not categorically a crime of violence.
It includes a mere offensive touching that does not include the intent to harm or use violent force,
if that touching goes on to cause bodily injury. People v. Hayes, 142 Cal. App. 4th 175, 180
(Cal. App. 2d Dist. 2006). “The statute (§ 243) makes a felony of the act of battery which results
in serious bodily harm to the victim no matter what means or force was used. This is clear from
the plain meaning of the statute.” People v. Hopkins, 78 Cal. App. 3d 316, 321 (Cal. App. 2d
Dist. 1978).
Note: Crime Involving Moral Turpitude. Because § 243(d) carries the same intent as
simple battery, it should not be held to be a categorical CMT. (See discussion in immigration
effect box above.) Under Silva-Trevino, however, the immigration judge may investigate the
actual conduct of the defendant and if it involves actual violence, find that the offense is a crime
involving moral turpitude. This might be forestalled by a specific plea to an “offensive
touching.”
Crime of violence. Since there is not case on point, despite the good arguments criminal
defense counsel should act conservatively and try to plead to an offense other than P.C. § 243(d)
to avoid a crime of violence. Counsel should plead to a misdemeanor, or reduce the conviction
to a misdemeanor.
C. Safer Pleas for DUI and Negligence/Recklessness that Risks Injury
Crime of Violence. Driving under the influence, along with other offenses where injury
may be caused through negligence or recklessness, does not come within the definition of crime
of violence under 18 USC § 16. See below.
Crime Involving Moral Turpitude. Even repeated convictions for driving under the
influence is not a crime involving moral turpitude. 210 The Ninth Circuit held that an Arizona
210 Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001).
Immigrant Legal Resource Center N-131