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California Quick Reference Chart and Notes February 2010 Receipt of stolen property, P.C. § 496(a) is not categorically a crime involving moral turpitude because it includes intent to temporarily deprive the owner of the property. Castillo-Cruz v. Holder, 581 F.3d 1154 (9 th Cir. 2009). Where a plea is specifically taken to intent to deprive temporarily, the question is resolved under the modified categorical approach and the immigration judge may not proceed beyond the record under Matter of Silva-Trevino, 24 I&N Dec. 687, 699 (AG 2008). F. Safer Pleas for Offenses Related to Drugs See further discussion in § N.7 Controlled Substances Basic defenses are summarized here, to provide to noncitizen defendants whom you have represented. However, the best course is to return to § N.8 Controlled Substances, and read all the commentary and warnings about pleas in this complex area. See also the Chart for drug pleas that appears at the end of § N.8. For the Defendant:: If a specific controlled substance is not identified in the record of conviction or under the terms of the statute, there is no proof that the offense involved a federally defined controlled substance and there are no immigration consequences based on a controlled substance conviction. For example, where the record showed only possession of a “controlled substance” under Calif. H&S § 11377 with specifying the substance, the Ninth Circuit found that the person was not deportable. Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007); Matter of Paulus, 11 I&N Dec. 274 (BIA 1965); Esquivel-Garcia v. Holder, __ 9 th Cir. __ (January 29, 2010) (same for Calif. H&S § 11350). The government has the burden of proving that a specific offense is a controlled substance offense that bars eligibility for relief. Esquivel-Garcia. . Note on unspecified substance. Advise the defendant that he or she should not admit the name of the controlled substance to the immigration judge, or to anyone else. This might be termed a formal “admission” of a drug offense, which would make the person inadmissible. For the Defendant: Accessory after the fact to a drug offense is not a deportable drug conviction or aggravated felony. Matter of Batista, 21 I&N Dec. 955 (BIA 1997). It is categorically not a crime involving moral turpitude, meaning that it will not be held to involve moral turpitude regardless of the fact situation. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc). Note on accessory: ICE might argue that the moral turpitude finding should be challenged under Silva-Trevino, or under the Ninth Circuit statement that it will defer to the BIA in moral turpitude determinations, in Marmolejo-Campos, supra. Immigrant Legal Resource Center N-137
California Quick Reference Chart and Notes February 2010 Also, counsel should obtain a sentence of 364 days or less, and/or make sure that the record of conviction indicates, or leaves open the possibility, that the accessory assisted the person in escaping from police, not avoiding an ongoing judicial proceeding. Batista-Hernandez, supra, also held that federal accessory after the fact is an aggravated felony as obstruction of justice if a sentence of a year or more is imposed, although under subsequent precedent that would not be true unless the offense impedes an ongoing judicial proceeding. See Part G, infra. For the Defendant: Offering to commit a drug offense under Calif. H&S §§ 11352(a), 11360(a) and 11379(a) is not an aggravated felony because it constitutes solicitation. Therefore, these statutes are divisible for this purpose. United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001)(en banc). Transportation for personal use is not a drug trafficking aggravated felony; therefore the statutes also are divisible in this manner. Note on offering and transportation: Transportation for personal use is a better plea than offering, for one thing because it will be recognized outside the Ninth Circuit. A conviction for transportation or solicitation (of a specifically identified controlled substance) under these statutes is a deportable and inadmissible offense relating to a controlled substance. Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009) (solicitation). For the Defendant: A conviction under P.C. § 653f(d) for soliciting possession of a drug per commission of Health & Safety Code §§ 11352, 11379, 11379.5, 11379.6, or 11391 is not a conviction of a deportable and inadmissible drug offense, nor of an aggravated felony. Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009). Note on § 653f: The government might charge that this is dicta. Note on possession for sale: Avoid possession for sale of a specified substance, which is an aggravated felony. If needed, plead up to offering to sell as described above. Possession for sale of an unspecified substance is a good plea. For the Defendant: A first conviction for simple possession (felony or misdemeanor); for a lesser offense such as possession of paraphernalia eliminated for immigration purposes by “rehabilitative relief” such as under Prop 36, DEJ or PC § 1203.4. Lujan-Armendariz v. INS, 222 F.3d 728 (9 th Cir. 2000), Cardenas-Uriarte v. INS, 227 F.3d 1132 (9 th Cir. 2000). Note on Lujan-Armendariz. This will not work if the person violates probation, even if she later completes probation. It will not work if there was a prior pre-plea diversion. The Lujan defense will not be accepted outside of the Ninth Circuit. See § N.8, supra. N-138 Immigrant Legal Resource Center
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