quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 offense that contains the elements of driving under the influence while knowingly on a suspended license does involve moral turpitude. 211 California does not have a single offense that includes both DUI and knowingly driving on a suspended license. There is a threat that a conviction for DUI with a sentence enhancement based on no license, suspended license, etc. could be held to involve moral turpitude. Matter of Silva-Trevino defined a crime involving moral turpitude as a reprehensible act with a mens rea of at least recklessness. Therefore reckless DUI might be held a crime involving moral turpitude. Alcoholic. Evidence of repeated arrests or convictions for DUI may trigger a charge that the person is inadmissible as an alcoholic, which is classed as a medical disorder that poses a threat to self or others. 8 USC § 1182(a)(2). The person also might be held barred from establishing good moral character as a “habitual drunkard.” See 8 USC § 1101(f). For the Defendant: 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” and is not an aggravated felony even if a sentence of a year or more is imposed. Leocal v. Ashcroft, 125 S.Ct. 377 (2004); Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc). A DUI is not a crime involving moral turpitude, including if there are multiple convictions. Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001). D. Safer Pleas for Offenses Related to Firearms or Explosives See also § N.12 Firearms Offense 1. Manufacture, possession of firearm, other weapon, PC § 12020(a) Avoiding deportability under the firearms ground. A noncitizen who has been admitted to the U.S. is deportable if convicted of almost any offense relating to firearms, including possession or use. See 8 USC § 1227(a)(2)(C) and § N.12 Firearms Offenses. To avoid this, the best plea is specifically to an offense that does not involve firearms, but a vague record of conviction also will prevent deportability. There are no other immigration consequences to the plea as outlined above; possession of a weapon without intent to use it is not a moral turpitude offense or a crime of violence. Section 12020 as a whole does contain several dangerous offenses, including trafficking in firearms or explosive devices which is an aggravated felony under 8 USC § 1101(a)(43)(C). 211 Marmolejo-Campos v. Holder, 558 F.3d 903 (9 th Cir. 2009). (knowingly driving on a suspended license while under the influence in violation of Ariz. Rev. Stat. § 28-1381/1383 is a crime involving moral turpitude). The panel distinguished Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9 th Cir. 2003), which held that merely exerting control over a vehicle (e.g., “sitting in one’s own car in one’s own driveway with the key in the ignition and a bottle of beer in one’s hand”) does not involve moral turpitude. N-132 Immigrant Legal Resource Center
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