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