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 />
Crime involving moral turpitude. Burglary is a crime involving moral turpitude to the<br />
extent of the underlying intent. Entry with intent to commit larceny involves moral turpitude,<br />
while entry with intent to a specified offense that does not involve moral turpitude (or, assuming<br />
the government has the burden of proof, an unspecified offense) is not. Under Matter of Silva-<br />
Trevino, however, it may be difficult to ensure that a given offense does not involve moral<br />
turpitude. In addition, burglary will be held a crime involving moral turpitude if it involves an<br />
unlawful entry into a dwelling.<br />
4. Theft instead of fraud, <strong>and</strong> other measures to avoid the aggravated felony of an offense<br />
involving fraud or deceit in which the loss to the victim exceeds $10,000.<br />
A fraud or tax fraud offense in which the loss to the victims/government is more than<br />
$10,000 is an aggravated felony under 8 USC § 1101(a)(43)(M). In 2009 the Supreme Court<br />
exp<strong>and</strong>ed the kind of evidence that can be used to establish the amount of loss to the victim,<br />
although it found that the categorical approach must be used to establish that the offense<br />
involved fraud or deceit. Nijhawan v. Holder, 129 S. Ct. 2294 (2009). The most secure plea<br />
option is to an offense that does not involve fraud or deceit, <strong>for</strong> example, to theft under P.C. §<br />
484. This means specifically to a theft offense, or at least to § 484 in general; not to<br />
embezzlement, fraud or other theft by deceit in § 484.<br />
A theft offense will become an aggravated felony if a sentence of a year or more is<br />
imposed, but not based upon a loss to the victim of over $10,000. There<strong>for</strong>e a plea to a theft<br />
offense under § 484 can include restitution to the victim of over $10,000, but the sentence<br />
imposed must be 364 days or less <strong>for</strong> any single count.<br />
If you must plead to an offense involving fraud or deceit (<strong>and</strong> deceit is broadly defined),<br />
or to welfare fraud, see additional advice at N. 13 Fraud, supra. See also Brady, “Preliminary<br />
Advisory: Nijhawan v. Holder” at www.ilrc.org/criminal.php.<br />
For the Defendant: A conviction <strong>for</strong> a fraud or deceit offense in which the loss to the victim or<br />
victims was over $10,000 is an aggravated felony. A theft offense under P.C. § 484 is not an<br />
offense involving fraud or deceit. There<strong>for</strong>e proof of a loss to the victim/s exceeding $10,000<br />
does not make the offense an aggravated felony. Matter of Garcia-Madruga, 24 I&N Dec. 436,<br />
440 (BIA 2008).<br />
5. Receipt of Stolen Property is not categorically a crimes involving moral turpitude<br />
A conviction <strong>for</strong> receipt of stolen property under P.C. § 496(a) is a categorical aggravated<br />
felony conviction if a sentence of a year or more is imposed. 216 However, the offense is<br />
divisible as a crime involving moral turpitude.<br />
216 Matter of Cardiel-Guerrero, 25 I&N Dec. 12 (BIA 2009), Verduga-Gonzalez v.Holder, 581 F.3d 1059 (9 th Cir.<br />
2009).<br />
N-136 Immigrant Legal Resource Center